Contract No.10°"2. (CCS)
SOFIW ARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") entered into on J!/_ day of November, 2015 ("Effective Date"), by and between Tyler Technologies,_lnc., a Delaware corporation ("Vendor", and City of Santa Monica, a California municipal corporation ("City") is made with reference to the following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. City seeks to purchase an Enterprise Resource Planning System for use by the City of Santa Monica pursuant to the City's Request for Proposal ("RFP"), which is attached hereto as Exhibit G and incorporated herein by reference.
C. Vendor is a Delaware corporation that markets and supports certain software applications licensed hereunder. In response to the City's RFP, Vendor submitted its Proposal in response to the RFP ("Proposal"), which is attached hereto as Exhibit F and incorporated herein by reference.
D. City and Vendor desire to enter into this Agreement upon the terms and conditions set forth below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
SECTION A - DEFINITIONS
1. Definitions. The following definitions shall apply to the terms as they appear in this Agreement:
1.1 "Agreement" means this Software License Agreement.
1.2 "Business Travel Policy" means our business travel policy. A copy of our current Business Travel Policy is attached as Schedule 1 to Exhibit B.
1.3 "Defect" means a failure of the Tyler Software to substantially conform to the functional descriptions set forth in our written proposal to you, or their functional equivalent. Future functionality may be updated, modified, or otherwise enhanced through our maintenance and support services, and the governing functional descriptions for such future functionality will be set forth in our·then-current Documentation.
1 1.4 "Developer" means a third party who owns the intellectual property rights to Third Party Software.
1.5 "Documentation" means any online or written documentation related to the use or functionality of the Tyler Software that we provide or otherwise make available to you, including instructions, user guides, manuals and other training or self-help documentation.
1.6 "Effective Date" means the date on which your authorized representative signs the Agreement.
1. 7 "Force Majeure" means an event beyond the reasonable control of you or us, including, without limitation, governmental action, war, riot or civil commotion, fire, natural disaster, or any other cause that could not with reasonable diligence be foreseen or prevented by you or us.
1.8 "Installation" means a service performed by Tyler whereby we install the licensed Tyler Software in the City hardware environment. Installation of the Tyler Software shall include a verification, designed and performed by Tyler personnel, that confirms the Tyler Software is appropriately installed. City personnel shall be permitted reasonable access, including observation via Go-ToMeeting, to such performance of the verification of Installation. The City and Tyler agree to reasonably cooperate in order to perform Installation of the Tyler Software in the first week of January, 2016 provided this Agreement is executed in November of 2015.
1.9 "Investment Summary" means the agreed upon cost proposal for the software:
products, and services attached as Exhibit A.
1. 10 "Invoicing and Payment Policy" means the invoicing and payment policy. A copy of our current Invoicing and Payment Policy is attached as Exhibit B.
1. 11 "Maintenance and Support Agreement" means the terms and conditions governing the provision of maintenance and support services to all of our customers. A copy of our current Maintenance and Support Agreement is attached as Exhibit C.
1.12 "Support Call Process" means the support call process applicable to all of our customers who have licensed the Tyler Software. A copy of our current Support Call Process is attached as Schedule 1 to Exhibit C.
1. 13 "Third Party End User License Agreement(s)" means the end user license agreement(s), if any, for the Third Party Software attached as Exhibit D.
1.14 "Third Party Hardware" means the third party hardware, if any, identified in the Investment Summary.
1.15 "Third Party Products" means the Third Party Software and Third Party Hardware.
2 1.16 "Third Party Software" means the third party software identified in the Investment Summary or Third Party License Agreements (Finite Matters, Ltd. and DocOrigin).
1.17 "Tyler" means Tyler Technologies, Inc., a Delaware corporation.
1.18 "Tyler Software" means our proprietary software and related Tyler proprietary interfaces identified in the Statement of Work, Investment Summary and licensed to you through this Agreement.
1.19 "we", "us", "our" and similar terms mean Tyler.
1.20 "you" and similar terms mean Client.
1.21 "Vendor" means and refers to Tyler Technologies, Inc.
1.22 "City" or "Client" means and refers to the City of Santa Monica.
1.23 "Licensed Products" means and refers to the Tyler Software and Third Party Software, including associated media and printed materials, and may include "online" or electronic dbcumentation as listed in the Proposal, Statement of Work and the Investment Summary.
1.24 "Server Software" means and refers to the Licensed Products to be used on a shared computer referred to as the "Server" or "Servers".
1.25 "Client Software" means and refers to the Licensed Products to be used on individual user workstations.
SECTION B - SOFTWARE LICENSE & PROFESSIONAL SERVICES
2. License Grant. In consideration of the City's promises contained in this Agreement, Vendor grants to City, and City accepts, subject to the terms and conditions set forth in this Agreement, a perpetual, non-exclusive and non-transferable license to use the Tyler Software for the City's municipal purpose only. Vendor represents that it possesses all rights and interest in the Tyler Software to enter into this Agreement.
Your rights to use the Tyler Software are perpetual but may be revoked after notice by Tyler and your failure to cure a material breach of this Agreement.
3. License Fee, Use and Restrictions.
3.1 You agree to pay us the license fees in the amounts set forth in the Investment Summary attached as Exhibit A Those amounts are payable in accordance with our Invoicing and Payment Policy attached as Exhibit B.
3.2 City shall not copy the Tyler Software or allow its use by others without the written permission of Vendor except for City's production, backup, archival, and in-house disaster recovery purposes. City will reproduce and include the copyright, trade secret or other restrictive and proprietary legends from the original on all copies. All copies will be subject to the terms of this Agreement. 3 (
The Tyler Software may be used only by City, and not for the benefit of any third party.
3.3 City shall not (i) reverse engineer, decompile, or disassemble any part of the Tyler Software; (ii) distribute, sell rent, lease, lend, provide commercial hosting services or otherwise transfer any part of the Tyler Software; and (iii) remove the patent, copyright, trade secret or other proprietary protection legends or notices which appear on or in the Tyler Software.
3.4 City shall not create any derivative work or product based on or derived from the Tyler Software or documentation or modify any Tyler Software or documentation without the prior written consent of Vendor. In the event of a breach of this provision (and without limiting Vendor's remedies) said modification, derivative work or product based on the Tyler Software or documentation is hereby deemed assigned to Vendor. The foregoing notwithstanding, the City may create training handouts and/ or training videos for internal use, including use of captured screenshots; post such internal materials on the City's intranet; and use any such document for internal presentation purposes provided all such use otherwise complies with the terms of this Agreement.
3.5 The license terms in this Agreement apply to updates and enhancements we may provide to you or make available to you through your Maintenance and Support Agreement.
3.6 The right to transfer the Tyler Software to a replacement hardware system is included in your license. You will give us advance written notice of any such transfer and will pay us for any required or requested technical assistance associated with such transfer.
3. 7 We reserve all rights not expressly granted to you in this Agreement. The Tyler Software and Documentation are protected by copyright and other intellectual property laws and treaties. We own the tide, copyright, and other intellectual property rights in the Tyler Software and the Documentation.
3.8 Escrow. Tyler maintains an escrow agreement with a third party under which we place the source code for each major release of the Tyler Software. City may be added as a beneficiary to the escrow agreement by completing a standard beneficiary enrollment form and paying the annual beneficiary fee (currently $800) directly to the escrow agent. You will be responsible for maintaining your ongoing status as a beneficiary, including payment of the then-current annual beneficiary fees. Release of source code for the Tyler Software is strictly governed by the terms of the escrow agreement.
4. Software Services.
4.1 Vendor shall provide various implementation-related services itemized in the Investment Summary and detailed in the Statement of Work attached hereto as 4 Exhibit H, Interface Chart attached as Exhibit I, Modifications attached as Exhibit J, and Agreement for Operating System & Database Administrative Support attached as Exhibit K. Such setvices include project consulting and implementation, annual seivice and maintenance, on-site training, software setup and installation, and data conversion analysis. You will receive those services according to our industry-standard implementation plan, which outlines roles and responsibilities in calendar and project documentation, which will be subject to reasonable approval by the City. We will finalize that documentation with you upon execution of this Agreement.
4.2 Vendor will determine and City shall review qualifications and approve or reasonably disapprove the key personnel to be assigned to perform the seivices under this Agreement, an engagement letter, scope of work, exhibit or other written amendment. Vendor shall be required to provide additional functional and technical resources as required to provide the services required hereunder.
In the event of any changes to the Vendor's staff, Vendor will timely notify the City in writing. Vendor agrees that any replacement of any listed individuals will be made with individuals of comparable or higher experience, and that the composition of Vendor's employees or subcontractors assigned to this Agreement will be maintained in a manner that provides the same or higher level of services to the City. The City reseives the reasonable right to approve or reasonably disapprove any individuals proposed by Vendor to be included as part of Vendor's staff assigned to this Agreement. In the event of any additional staffing or personnel changes by Vendor, Vendor agrees to absorb all expenses and costs associated with such change and shall not charge the City with such expenses or costs under this Agreement.
4.3 Either party may request at any time the removal of any individual performing Services if that party: (i) reasonably believes that individual is not qualified to perform the services or does not meet appropriate professional standards; and (ii) previously provided the other party with written notice of the problem and a reasonable opportunity to remedy the situation.
4.4 Professional Services Fees. You agree to pay us the professional services fees in the amounts set forth in the Investment Summary. You acknowledge that the fees stated in the Investment Summary are good-faith estimates of the amount of time and materials required for your implementation. We will bill you the actual fees incurred based on the in-scope services provided to you. Those amounts are payable in accordance with our Invoicing and Payment Policy.
4.5 Additional Services. The Investment Summary and Statement of Work contains the scope of services and related costs (including programming and/ or interface estimates) required for the project based on our understanding of the specifications you supplied. If additional work is required, or if you use or request additional services, we will provide you with an addendum or change 5 order, as applicable, outlining the costs for the additional work. The price quotes in the addendum or change order will be valid for thirty (30) days.
4.6 Cancellation. We make all reasonable efforts to schedule our personnel for travel, including arranging travel reservations, at least two (2) weeks in advance of commitments. Therefore, if you cancel services less than two (2) weeks in advance (other than for Force Majeure or breach by us), you will be liable for all (a) non-refundable expenses incurred by us on your behalf, and (b) daily fees associated with cancelled professional services if we are unable to reassign our. personnel. We will make all reasonable efforts to reassign personnel in the event you cancel within two (2) weeks of scheduled commitments.
4. 7 Services Warranty. We will perform the services in a professional, workmanlike manner, consistent with the highest industry standards. In the event we provide services that do not conform to this warranty, we will re-perform such services at no additional cost to you.
4.8 Site Access and Requirements. You agree to provide us with full and free access to your personnel, facilities, and equipment as may be reasonably necessary for us to provide implementation services, subject to any reasonable security protocols or other written policies provided to us. You further agree to provide a reasonably suitable environment, location, and space for the installation of the Tyler Software and Third Party Products, including, without limitation, sufficient electrical circuits, cables, and other reasonably necessary items required for the installation and operation of the Tyler Software and Third Party Products.
4.9 Client Assistance. You acknowledge that the implementation of the Tyler Software is a cooperative process requiring the time and resources of your personnel. You agree to use all reasonable efforts to cooperate with and assist us as may be reasonably required to meet the agreed upon project deadlines and other milestones for implementation. This cooperation includes at least working with us to schedule the implementation-related services you have contracted for.
We will not be liable for failure to meet any deadlines and milestones when such failure is due to Force Majeure or to the failure by your personnel to provide such cooperation and assistance (either through action or omission).
5. Installation & System Acceptance. Vendor will install the Tyler Software as defined at Section 1.8 supra. System acceptance will be complete and shall be issued by the City when all of the following are met:
A. There are no priority 1 (as defined in Tyler's Support Call Process) issues for a thirty (30) consecutive day period commencing with the first day of live processing of the final phase; and
B. The City has been able to process two (2) sequential payroll runs with no errors in paychecks caused by a Defect in the Tyler Software; and 6 C. The City has made one (1) timely CalPERS submission. In the event of a failure of timely CalPERS submission, but such failure is not caused by a Defect in Tyler Software, System acceptance shall issue.
Project closure as used under section l. l(d) of Exhibit B shall mean System acceptance as defined above.
6. License Fees and Services Fees. City shall pay to Vendor an amount not to exceed $2,309,909 as set forth in Exhibits A and B. Such fee does not include estimated travel expenses or annual maintenance beyond year 1, both of which shall be determined in accordance with this Agreement.
6.1 License Fee. City shall pay Vendor a Software License Fee in the amount of $980,574 in accordance with the Invoicing and Payment Policy attached hereto as Exhibit B. The Software License Fee consists of Tyler Software License fees of $914,870 and PattemStream Software License Fees of $65,704. ♦ Payment Schedule for License Fees. The license fee shall be paid according to the schedule set forth in the Invoicing and Payment Policy attached hereto as Exhibit B.
6.2 Services Component. The fees for services rendered shall not exceed $1,262,242 and shall be paid in accordance with the schedule set forth in the Invoicing and Payment Policy attached hereto as Exhibit B. The City's request for any additional Services beyond those set forth in this Agreement shall be at an additional cost to City.
6.3 Right to Withhold. If City believes any delivered product or service does not conform to the warranties in this Agreement, City will provide Tyler with written notice within fifteen (15) days of City receipt of the applicable invoice.
The written notice must contain sufficient detail of the issues City contends are in dispute. Tyler will provide a written response to you that will include either a justification of the invoice, an adjustment to the invoice, or a proposal addressing the issues presented in your notice. We will work together as may be necessary to develop an action plan that outlines reasonable steps to be taken by each of us to resolve any issues presented in your notice. City may only withhold payment of the amount(s) actually in dispute until we complete the action items outlined in the plan. If Tyler is unable to complete the action items outlined in the action plan because of City's failure to complete the items agreed to be done by City, then City will remit full payment of the invoice. Tyler reserves the right to suspend delivery of all services, including maintenance and support services, if City fails to pay an invoice not disputed as described above.
7. Copyright and Other Restrictions. The Tyler Software are licensed, not sold, and are not transferable. Title and copyrights in and to the Licensed Products, excluding City data (including any images, photographs, video, audio, and text incorporated into the Tyler Software), accompanying printed material, and any copies you are permitted 7 to make herein, are owned by Vendor (or Developer in the case of Third Party Software) and are protected by United States copyright laws and international treaty provisions.
8. Limited Warranty.
8.1 We warrant that the Tyler Software will be without Defect(s) as long as you have a Maintenance and Support Agreement in effect. If the Tyler Software does not perform as warranted, we will use all reasonable efforts, consistent with industry standards, to cure the Defect as set forth in the Maintenance and Support Agreement.
8.2 The Tyler Software shall continue to perform in accordance with Vendor's most current documentation, which may be modified from time to time, so long as the City remains a subscriber to the Maintenance Agreement between the parties.
8.3 There is no program code, other than as specified in Vendor's documentation, that will restrict the City's use of the Tyler Software upon payment in full.
8.4 We maintain an escrow agreement with a third party under which we place the source code for each major release of the Tyler Software. You may be added as a beneficiary to the escrow agreement by completing a standard beneficiary enrollment form and paying the annual beneficiary fee (currently $800) directly to the escrow agent. You will be responsible for maintaining your ongoing status as a beneficiary, including payment of the then-current annual beneficiary fees.
Release of source code for the Tyler Software is strictly governed by the terms of the escrow agreement.
8.5 Any modification or enhancement of the Tyler Software shall satisfy the warranties and conditions set forth in this Section, so long as the City is a subscriber to the Maintenance Agreement between the parties.
8.6 The Licensed Products will be free of any errors which severely effect the operation of the system or keep the system from production use.
This section shall survive the termination of this Agreement.
SECTION C - MAINTENANCE AND SUPPORT
9. Tyler will provide City with maintenance and support services for the Tyler Software under the terms of the Maintenance and Support Agreement entered into concurrently with this Agreement.
SECTION D - THIRD PARTY PRODUCTS
10. Third Party Hardware. We will sell, deliver, and install onsite the Third Party Hardware, if you have purchased any, for the price set forth in the Investment Summary. Those amounts are payable in accordance with our Invoicing and Payment Policy.
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11. Third Party Software & Services. Upon payment in full of the Third Party Software license fees, you will receive a non-transferable license to use the Third Party Software and related documentation for the City's municipal purpose only .. Your license rights to the Third Party Software will be governed by the Third Party End User License Agreement(s).
11.1 We will or, as appropriate, cause the Third Party Product provider to install, the Third Party Software. Finite Matters will provide the training identified in the Investment Summary under Pattern Stream Implementation and in the Finite Matters Statement of Work. The installation and trainiF1g costs are included in the Investment Summary.
11.2 If the Developer charges a fee for future updates, releases, or other enhancements to the Third Party Software, you will be required to pay such addition;l future fee.
11.3 The right to transfer the Third Party Software to a replacement hardware system is governed by the Developer. You will give us advance written notice of any such transfer and will pay us for any required or requested technical assistance associated with such transfer.
12. Third Party Products Warranties.
12.1 We are authorized by each Developer to grant or transfer the licenses to the Third Party Software.
12.2 The Third Party Hardware will be new and unused, and upon payment in full, you will receive free and clear title to the Third Party Hardware.
12.3 You acknowledge that we are not the manufacturer of the Third Party Products.
We do not warrant or guarantee the performance of the Third Party Products.
However, we grant and pass through to you any warranty that we may receive from the Developer or supplier of the Third Party Products.
12.4 A new release of the Tyler Software will not cause a Defect in any interface between Tyler Software and Pattern Stream software provided pursuant to this Agreement.
13. Maintenance. Provided that the Maintenance and Support Agreement is in effect, you may report defects and other issues related to the Third Party Software directly to us, and we will (a) directly address the defect or issue, to the extent it relates to our interface with the Third Party Software; and/or (b) facilitate resolution with the Developer, unless that Developer requires that you have a separate, direct maintenance agreement in effect with that Developer. In all events, if you do not have a Maintenance and Support Agreement in effect with Tyler, you will be responsible for resolving defects and other issues related to the Third Party Software directly with the Developer.
9 SECTION E - GENERAL TERMS AND CONDITIONS
14. Insurance. Prior to commencing work, Vendor must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by Vendor or Vendor's agents, representatives, employees for the duration of this Agreement. Tyler must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit E, Insurance Requirements and Verifications.
15. Indemnification & Limitation of Liability.
15.1 Intellectual Property Infringement Indemnification.
15.1.1 We will defend you against any third party claim(s) that the Tyler Software infringes that third party's patent, copyright, or trademark, or misappropriates its trade secrets, and will pay the amount of any resulting adverse final judgment (or settlement to which we consent).
You must notify us promptly in writing of the claim and give us sole control over its defense or settlement. You agree to provide us with reasonable assistance, cooperation, and information in defending the claim at our expense.
15.1.2 Our obligations under this Section 15(1) will not apply to the extent the claim or adverse final judgment is based on your: (a) use of a previous version of the Tyler Software and the claim would have been avoided had you installed and used the current version of the Tyler Software; (b) combining the Tyler S9ftware with any product or device not provided, contemplated, or approved by us; (c) altering or modifying the Tyler Software, including any modification by third parties at your direction or otherwise permitted by you; (d) use of the Tyler Software in contradiction of this Agreement, including with non-licensed third parties; or (e) willful infringement, including use of the Tyler Software after we notify you to discontinue use due to such a claim. 15 .1.3 If we receive information concerning an infringement or misappropriation claim related to the Tyler Software, we may, at our expense and without obligation to do so, either: (a) procure for you the right to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a functional equivalent, in which case you will stop running the allegedly infringing Tyler Software immediately.
15.1.4 If, as a result of an infringement or misappropriation claim, your use of the Tyler Software is enjoined by a court of competent jurisdiction, in addition to paying any adverse final judgment (or settlement to which 10 ,.
we consent), we will, at our option, either: (a) procure the right to continue its use; (b) modify it to make it non,infringing; (c) replace it with a functional equivalent; or (d) terminate your license and refund the license fees paid for the infringing Tyler Software. If the license is terminated prior to the date Tyler made the infringing Tyler Software available for use in live production, Tyler shall also refund the fees for the Implementation days provided for the infringing Tyler Software.
This section provides your exclusive remedy for third party copyright, patent, or trademark infringement and trade secret misappropriation claims.
15,2 Property Damage and Personal Injury Indemnification. We will defend, indemnify and hold harmless you and your agents, officials, and employees from and against any and all direct claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property damage to the extent caused by our negligence or willful misconduct.
15.3 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED
IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL OTHER
WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
15.4 LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH IN THIS AGREEMENT, OUR LIABILITY FOR DAMAGES
ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON A
THEORY OF CONTRACT OR TORT, INCLUDING NEGLIGENCE AND
STRICT LIABILITY, SHALL BE LIMITED TO THE LESSER OF (A) YOUR ACTUAL DIRECT DAMAGES OR (B) TWO (2) TIMES THE AMOUNTS
SET FORTH IN THE INVESTMENT SUMMARY OF THIS AGREEMENT.
THE PRICES SET FORTH IN THIS AGREEMENT ARE SET IN RELIANCE UPON THIS LIMITATION OF LIABILITY. THE FOREGOING
LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS THAT ARE SUBJECT TO SECTIONS 15(1) AND 15(2).
15.5 EXCLUSION OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE
LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR
CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF WE HA VE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11 15.6 During the period any portion of the Software is in transit and prior to download, Vendor shall have sole responsibility for all risk of loss or damage to the Software.
16. Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
16.1 All notices, demands, requests or approvals to the City:
Finance Department of the City of Santa Monica
1 71 7 4th Street, Suite 250
Santa Monica, California 90401
Attention: Gigi Decavalles, Finance Director
Re: Contract No. <Number>
with a copy to:
Finance Department of the City of Santa Monica
1717 4th Street, Suite 250
Santa Monica, California 90401
Attention: Gayle Kirby, Financial Systems & Payroll Administrator with a copy to:
Santa Monica City Attorney's Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Contract No. <Number>
16.2 All notices, demands, requests or approvals to Tyler:
Tyler Technologies, Inc.
1 Tyler Drive
Yarmouth, ME 04096
Attention: Associate General Counsel
17. Costs of Litigation. If any legal action or proceeding is necessary to enforce any provision of this Agreement or for breach of this Agreement, the prevailing party shall be entitled to receive from the opposing party all costs and expenses and such amount as may be adjudged to be reasonable attorney's fees. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by the prevailing party as well as any attorneys' fees paid to outside attorneys in connection with the action.
12 18. Assignment. Vendor shall not assign, hypothecate or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City, which may be withheld at the City's sole discretion. The foregoing notwithstanding, Vendor is entitled to assign this Agreement without notice or consent of City in the event Vendor has a change in control.
19. Applicable Law. This Agreement shall be governed by the laws of the State of California.
20. Rights Upon Termination.
20.1 If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within thirty (30) days of the notice, the other party may terminate this Agreement. If such default is incapable of cure, the other party may terminate this Agreement immediately upon written notice of its desire to terminate.
20.2 Upon termination for material breach by the City after notice and expiration of the cure period, the License to use the Licensed Products shall be immediately revoked and all Licensed Products, related documentation, Software Tools, and supporting materials will be returned to Vendor or destroyed. In no event shall this provision apply where Tyler is in material breach of this Agreement.
20.3 Payment Due Upon Termination. You agree to comply with Section 26, Dispute Resolution, prior to termination. In the event of termination, you will pay us for all undisputed fees and expenses related to the software, products, and/ or services you have received, or we have incurred or delivered, prior to the effective date of termination.
21. Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modifications of this Agreement will be effective only by written execution signed by both City and Vendor and approved as to form by the City Attorney. This Agreement is the product of negotiation and compromise between the parties. Accordingly, notwithstanding California Civil Code Section 1654, in the event of uncertainty, the language shall not be construed-against the party causing the uncertainty.
22. Permits and Licenses. Vendor, at its sole expense, shall obtain and maintain during the term of this Agreement, all required business and professional permits, licenses and certificates. Vendor shall obtain a Santa Monica business license.
23. Compliance with Law. Vendor shall comply with all applicable federal, state and local laws, including all ordinances, rules and regulations.
13 24. Nondiscrimination. In rendering services under this Agreement, Vendor shall not discriminate based upon race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability and shall comply with the requirements of all federal, state and local law.
25. Additional Products and Services. You. may purchase additional products and seivices at the rates set forth in the Investment Summary for twelve (12) months from the Effective Date, and thereafter at our then-current list price, by executing a mutually agreed addendum. The terms of this Agreement will control any such additional purchase(s), unless otherwise specifically provided in the addendum.
26. Optional Items. Pricing for any listed optional products and services in the Investment Summary will be valid for twelve (12) months from the Effective Date. 2 7. Dispute Resolution. You agree to provide us with written notice within thirty (30) days of becoming aware of a dispute. You agree to cooperate with us in trying to reasonably resolve all disputes, including, if requested by either party, appointing a senior representative to meet and engage in good faith negotiations with our appointed senior representative. Senior representatives will meet within thirty (30) days of the written dispute notice, unless otherwise agreed. All meetings and discussions between senior representatives will be deemed confidential settlement discussions not subject to disclosure under Federal Rule of Evidence 408 or any similar applicable state rule. If we fail to resolve the dispute, either of us may assert our respective rights and remedies in a court of competent jurisdiction. Nothing in this section shall prevent you or us from seeking necessary injunctive relief during the dispute resolution procedures.
28. Taxes. The fees in the Investment Summary do not include any taxes, including, without limitation, sales, use, or excise tax. If you are a tax-exempt entity, you agree to provide us with a tax-exempt certificate. Otherwise, we will pay all applicable taxes to the proper authorities and you will reimburse us for such taxes. If you have a valid direct-pay permit, you agree to provide us with a copy. For clarity, we are responsible for paying our income taxes arising from our performance of this Agreement.
29. E-Verify. We have complied, and will comply, with the £-Verify procedures administered by the U.S. Citizenship and Immigration Services Verification Division for all of our employees _assigned to your project.
30. Subcontractors. We will not subcontract any services under this Agreement without your prior written consent, not to be unreasonably withheld.
31. Force Majeure. Neither party will be liable for delays in performing its obligations under this Agreement to the extent that the delay is caused by Force Majeure; provided, however, that within ten (10) business days of the Force Majeure event, the party whose performance is delayed provides the other party with written notice explaining the cause and extent thereof, as well as a request for a reasonable time extension equal to the estimated duration of the Force Majeure event. 14 32. No Intended Third Party Beneficiaries. This Agreement is entered into solely for the benefit of you and us. No third party will be deemed a beneficiary of this Agreement, and no third party will have the right to make any claim or assert any right under this Agreement. This provision does not affect the rights of third parties under any Third Party End User License Agreement(s).
33. Severability. If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will be considered valid and enforceable to the fullest extent permitted by law.
34. No Waiver. In the event that the terms and conditions of this Agreement are not strictly enforced by either party, such non-enforcement will not act as or be deemed to act as a waiver or modification of this Agreement, nor will such non-enforcement prevent such party from enforcing each and every term of this Agreement thereafter.
35. Independent Contractor. We are an independent contractor for all purposes under this Agreement.
36. Client Lists. You agree that we may identify you by name in client lists, marketing presentations, and promotional materials.
37. Confidentiality. Both parties recognize that their respective employees and agents, in the course of performance of this Agreement, may be exposed to confidential information and that disclosure of such information could violate rights to private individuals and entities, including the parties. Confidential information is nonpublic information that a reasonable person would believe to be confidential and includes, without limitation, personal identifying information (e.g., social security numbers) and trade secrets, each as defined by applicable state law. Each party agrees that it will not disclose any confidential information of the other party and further agrees to take all reasonable and appropriate action to prevent such disclosure by its employees or agents. The confidentiality covenants contained herein will survive the termination or cancellation of this Agreement. This obligation of confidentiality will not apply to information that:
a. is in the public domain, either at the time of disclosure or afterwards, except by breach of this Agreement by a party or its employees or agents; b. a party can establish by reasonable proof was in that party's possession at the time of initial disclosure;
c. a party receives from a third party who has a right to disclose it to the receiving party; or
cl. is the subject of a legitimate disclosure request under the open records laws or similar applicable public disclosure laws governing this Agreement; provided, however, that in the event you receive an open records or other similar applicable request, you will give us prompt notice and otherwise perform the functions required by applicable law.
15 38. Multiple Originals and Signatures. This Agreement may be executed in multiple originals, any of which will be independently treated as an original document. Any electronic, faxed, scanned, photocopied, or similarly reproduced signature on this Agreement or any amendment hereto will be deemed an original signature and will be fully enforceable as if an original signature.
39. Exhibits. The following exhibits are incorporated by reference into this Agreement as though fully set forth herein.
Ill
Ill
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Investment Summary
Invoicing and Payment Policy
Schedule 1: Business Travel Policy
Maintenance and Support Agreement
Schedule 1: Support Call Process
Third Party End User License Agreement(s)
Insurance Requirements
Response to Request for Proposals ("Proposal")
Request for Proposals ("RFP")
Statement of Work
Schedule 1 - Tyler Statement of Work
Schedule 2 - Finite Matters, Ltd. Statement of Work
Interfaces (inclusive of Part 1 and Part 2)
Modifications
Operating System and Database Administration Support
16 40. In the event any portions of the Agreement conflict with one another, the following order of precedence shall be adhered to:
Agreement Sections A-E and Exhibits A-E and H-K
Exhibit F
Exhibit G
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
ATTEST:
!kn lAk J/nrJJAJ1LJJf~ ff\ SARAH P. GORMAN
City Clerk
APPROVED AS TO FORM:
17 CITY OF SANTA MONICA,
a mu · · corpor ion
-
City Manager
TYLER TECHNOLOGIES, INC.
By:------ -------- Name: ____________ _
Title: ____________ _
(
40. In the event any portions of the Agreement conflict with one another, the following order of precedence shall be adhered to:
Agreement Sections A--E and Exhibits A-E and H-K
Exhibit F
Exhibit G
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
ATTEST:
SARAH P. GORMAN
City Clerk
APPROVED AS TO FORM:
MARSHA JONES MOUTRIE
City Attorney
CITY OF SANTA MONICA,
a municipal corporation
By:--------------
RICK COLE
City Manager
TYLER TECHNOLOGIES, INC.
Name:
By, bJ~nr-
~~y,lll
Title: Senior Vice President, ERP and
School Division
(
SOFTWARE LICENSE AGREEMENT
TYLER TECHNOLOGIES, INC. AND THE CITY OF SANTA MONICA
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Investment Summary
Invoicing and Payment Policy
Schedule 1: Business Travel Policy
Maintenance and Support Agreement
Schedule 1: Support Call Process
Third Party End User License Agreement(s)
Insurance Requirements
Response to Request for Proposals ("Proposal")
Request for Proposals ("RFP")
Statement of Work
Schedule 1-Tyler Statement of Work
Schedule 2 - Finite Matters, Ltd. Statement of Work
Interfaces (inclusive of Part 1 and Part 2)
Modifications
Operating System and Database Administration Support
City of
Santa Monleae
t~I~lties
Sales Quotation For
City of Santa Monica
1685 Main St
Santa Monica, California 90401
Phone (310) 458-8411
Tyler Software and Related Services
Quoted By:
Date:
Quote Expiration:
Quote Name:
Quote Number:
Quote Description:
Jennifer Wahlbrink
11/17/2015
12/31/2015
City of Santa Monica-ERP-Munis
2015-14824
11-17-15
Description License lmpl. Days lmpl. Cost Data Conversion Module Total Year One Maintenance:
Financials:
Accounting/GL/BG/ AP $176,000.00 58 @$1,275.00 $73,950.00 $14,200.00 $264,150.00 $31,680.00 Purchasing $82,000.00 41 @$1,275.00 $52,275.00 $4,000.00 $138,275 00 $14,760.00 Fixed Assets $44,000.00 18 @$1,275.00 $22,950.00 $7,500.00 $74,450.00 $7,920.00 Inventory $44,000.00 18 @$1,.275.00 $22,950.00 $7,000.00 $73,950.00 $7,920.00 Project & Grant Accounting $30,000.00 14 @ $1,275.00 $17,850.00 $9,500.00 $57,350.00 $5,400.00 Cash Management $35,000.00 12@$1,275.00 $15,300.00 $0.00 $50,300.00 $6,300.00 Contract Management $22,000.00 9 @ $1,275.00 $11,475.00 $6,000.00 $39,475.00 $3,960.00 BMI Asset Track Interface $5,500.00 5 @ $1,275.00 $6,375.00 $0.00 $11,875.00 $990 00 BMI CollectlT Interface $5,500.00 5 @$1,275.00 $6,375.00 $0.00 $11,875.00 $990.00 Payroll/HR:
Payroll w/ESS $45,500.00 20 @$1,275.00 $25,500.00 $27,800.00 $98,800.00 $8,190.00 HR Management $20,000.00 8 @ $1,275.00 $10,200.00 $0.00 $30,200.00 $3,600.00 Revenue:
Accounts Receivable $40,500.00 27 @ $1,275.00 $34,4~5.00 $0.00 $74,925.00 $7,290.00 2015-14824 - 11-17-15 CONFIDENTIAL 1 of 12
Tyler Software and Related Services
Description License lmpl. Days lmpl. Cost Data Conversion Module Total Year One Maintenance Tyler Cashiering $60,000.00 10 @ $1,275.00 $12,750.00 $0.00 $72,750.00 $10,800.00 General Billing $19,250.00 16 @$1,275.00 $20,400.00 $12,500.00 $52,150.00 $3,465.00 Productivity:
Munis Analytics & Reporting $158,500.00 18 @$1,275.00 $22,950.00 $0.00 $181,450.00 $28,530.00 Tyler Content Manager SE $60,000.00 8 @ $1,275.00 $10,200.00 $0.00 $70,200.00 $10,800.00 Citizen Self Service $40,500.00 1 @ $1,275.00 $1,275.00 $0.00 $41,775.00 $7,290.00 eProcurement $35,000.00 1 @ $1,275.00 $1,275.00 $0.00 $36,275.00 $6,300.00 Tyler Forms Processing $19,500.00 0 @ $1,275.00 $0.00 . $0.00 $19,500.00 $3,900.00 Other:
CAFR Statement Builder $25,000.00 4 @ $1,275.00 $5,100.00 $0.00 $30,100.00 $4,500.00 OSDBA Contract Services $0.00 0 @ $1,275.00 $0.00 $0.00 $0.00 $30,000.00 Detailed GL History Conversion $0.00 0@ $1,275.00 $0.00 $30,000.00 $30,000.00 $0.00 Sub-Total: $967,750.00 $373,575.00 $118,500.00 $1,459,825.00 $204,585.00 Less Discount: $52,880.00 $0.00 $0.00 $52,880.00 $174,585.00 TOTAL: $914,870.00 293 $373,575.00 $118,500.00 $1,406,945.00 $30,000.00 Other Services
Description Quantity Unit Price Unit Discount Extended Price AP/PR Check Recon Import
AP Positive Pay Export Format
Business Process Consulting - Accounts Payable
Business Process Consulting - Benefits Enrollment
Business Process Consulting - Budget
Business Process Consulting - HR Management
Business Process Consulting - ProjecUGrant Accounting
Change Management Self Service
Custom Interfaces
Custom Modifications
2015-14824 - 11-17-15
1 1
1 1
1 1
1 1
80 114
CONFIDENTIAL
$1,000.00 $0.00 $1,000.00
$3.000.00 $0.00 $3,000.00
$19,250.00 $0.00 $19,250.00
$5,250.00 $0.00 $5,250.00
$19,250.00 $0.00 $19,250.00
$28,000.00 $0.00 $28,000.00
$28,000.00 $0.00 $28,000.00
$20,000.00 $0.00 $20,000.00
$1,100.00 $0.00 $88,000.00
$1,100.00 $1 ,100.00 $0.00
2 of 12
Other Services
Description Quantity Unit Price Unit Discount Extended Price, Custom Report Development - Includes 17 days identified through 50 $1,275.00 $0.00 $63,750.00 evaluation process
Custom Video Documentation 50 $1,275.00 $0.00 $63,750.00 Financials Lead 74 $1,275.00 $0.00 $94,350.00
HR/PR Lead 64 $1,275.00 $0.00 $81,600.00
Install Fee - New Server Install-WIN 1 $12,000.00 $0.00 $12,000.00 Munis Admin & Security 7 $1,275.00 $0.00 $8,925.00
P-Card Import Format W/0 Encumbrances 1 $7,500.00 $0.00 $7,500.00 Perfomance Bond 1 $58,522.00 $0.00 $58,522.00
Post Go Live Service Days 8 $1,275.00 $0.00 $10,200.00
Post-Live Support 30 $1,275.00 $0.00 $38,250.00
Project Planning Services 1 $13,000.00 $0.00 $13,000.00 Source Code Escrow 1 $800.00 $0.00 $800.00
Tyler Forms Library - Financial 1 $3,400.00 $0.00 $3,400.00 Tyler Forms Library - General Billing 1 $2,500.00 $0.00 $2,500.00 Tyler Forms Individual Financial Form 2 $500.00 $0.00 $1,000.00 Tyler Forms Library - Payroll 1 $1,500.00 $0.00 $1,500.00 Tyler Forms Library - Personnel Action 1 $1,400.00 $0.00 $1,400.00 Tyler Forms Processing Configuration 1 $3,000.00 $0.00 $3,000.00 Sub-Total: $802,597.00
Less Discount: 1125,400.00
TOTAL: $677,197.00
3rd Party Hardware, Software and Services
Description Quantity Unit Price Unit Discount Total Price Unit Maintenance Unit Maintenance Total Year One Discount Malnter1ance
BMI AssetTrak Additional Data Terminal 1 $2,295.00 $0.00 $2,295.00 $0.00 $0.00 $0.00 (PA692)
BMI-ASSETRACK-ARS for MUNIS tlncl. 1 $6,490.00 $0.00 $6,490.00 $0.00 $0.00 $0.00· Install Fee)
2015-14824-11-17-15 CONFIDENTIAL 3 of 12
3rd Party Hardware, Software and Services
Description Quantity Unit Price Unit Discount Total Price Unit Maintenance Unit Maintenance Total Year One Discount Maintenance
BMI CollectlT Additional Barcode Data 1 $2,975.00 $0.00 $2,975.00 $0.00 $0.00 $0.00 Terminal (PA692)
BMI CollectlT Barcode PrinterKit ,, 1 $1,295.00 $0.00 $1,295.00 $0.00 $0.00 $0.00 BMI CollectlT Inventory Bar Code 1 $6,490.00 $0.00 $6,490.00 $0.00 $0.00 $0.00 Scanning System
BMI TransTrak Additional Barcode Data 1 $2,295.00 $0.00 $2,295.00 $0.00 $0.00 $0.00 Terminal (PA692)
BMI Transtrak Fixed Asset Receiving 1 $3,345.00 $0.00 $3,345.00 $0.00 $0.00 $0.00 System
ID Tech MiniMag USB Reader 7 $62.00 $0.00 $434.00 $0.00 $0.00 $0.00 PatternStream Annual Maintenance 1 $0.00 $0.00 $0.00 $9,824.00 $0.00 $9,824.00 PatternStream Implementation 1 $92,970.00 $0.00 $92,970.00 $0.00 $0.00 $0.00 PatternStream Software License 1 $65,704.00 $0.00 $65,704.00 $0.00 $0.00 $0.00 Tyler Secure Signature System with 2 1 $1,650.00 $0.00 $1,650.00 $0.00 $0.00 $0.00 Keys
3rd Party Hardware Sub-Total: $0.00 $27,269.00 $0.00
3rd Party Software Sub-Total: $0.00 $65,704.00 $0.00 $9,824.00 3rd Party Services Sub-Total: $0.00 $92,970.00 $0.00
TOTAL: $185,943.00 $9,824.00
Summary One Time Fees Recurring Fees
Total Tyler Software $914,870.00 $30,000.00
Total Tyler Services $1,169,272.00 $0.00
Total 3rd Party Hardware, Software and $185,943.00 $9,824.00 Services
Summary Total $2,270,085.00 $39,824.00
Contract Total $2,309,909.00
(Excluding Estimated Travel Expenses)
Estimated Travel Expenses $259,500.00
2015-14824 - 11-17-15 CONFIDENTIAL 4 of 12
Detailed Breakdown of Conversions (included in Contract Total) Description Unit Price Unil Discount Extended Price,
Accounting Standard COA $3,500.00 $0.00 $3,500.00
Accounts Payable Opt 1 - Checks $3,200.00 $0.00 $3,200.00 Accounts Payable Opt 2 - Invoice $4,500.00 $0.00 $4,500.00 Accounts Payable Standard Master $3,000.00 $0.00 $3,000.00 Contracts $6,000.00 $0.00 $6,000.00
Detailed GL History Conversion $30,000.00 $0.00 $30,000.00 Fixed Assets Opt 1 - History $3,000.00 $0.00 $3,000.00
Fixed Assets Std Master $4,500.00 $0.00 $4,500.00
General Billing Opt 1 - Recurring Invoices $4,500.00 $0.00 $4,500.00 General Billing Opt 2 - Bills $5,500.00 $0.00 $5,500.00 General Billing Std CID $2,500.00 $0.00 $2,500.00
Inventory Opt 1 - Commodity Codes $2,500.00 $0.00 $2,500.00 Inventory Std Master $4,500.00 $0.00 $4,500.00
Payroll - Option 10 Certifications $2,000.00 $0.00 $2,000.00 Payroll - Option 11 Education $2,000.00 $0.00 $2,000.00 Payroll - Option 1 Deductions $2,800.00 $0.00 $2,800.00 Payroll - Option 2 Accrual Balances $2,500.00 $0.00 $2,500.00 Payroll - Option 3 Accumulators $2,000.00 $0 .. 00 $2,000.00 Payroll - Option 4 Check History $2,000.00 $0.00 $2,000.00 Payroll - Option 5 Earning/Deduction Hist $3,500.00 $0.00 $3,500.00 Payroll - Option 6 Applicant Tracking $2,000.00 $0.00 $2,000.00 Payroll - Option 7 PM Action History $2,000.00 $0.00 $2,000.00 Payroll - Option 8 Position Control $2,000.00 $0.00 $2,000.00 Payroll - Option 9 State Retirement Tables $2,000.00 $0.00 $2,000.00 Payroll - Standard $3,000.00 $0.00 $3,000.00
Project Grant Accounting Opt 1 - Actuals $3,000.00 $0.00 $3,000.00 Project Grant Accounting Opt 2 - Budgets $3,000.00 $0.00 $3,000.00 2015-14824 - 11-17-15 CONFIDENTIAL 5 of 12
Detailed Breakdown of Conversions (included in Contract Total) Description Unit Price Unit Discount Extended Price
Project Grant Accounting Standard
Purchasing - Purchase Orders - Standard
2015-14824 - 11-17-15
TOTAL:
CONFIDENTIAL
$3,500.00
$4,000.00
$0.00
$0.00
$3,500.00
$4,000.00
$118,500.00
6 of 12
Optional Saas
Description Annual Fee Net ~ # Years Total Saas Fee lmpl. Days Productivity:
Transparency Portal
TOTAL:
Optional Tyler Software & Related Services
$20,000.00
$20,000.00
1 $20,000.00
$20,000.00
0 0
Description License lmpl. Days lmpl. Cost Data Conversion Module Total Year One Maintenance Financials:
Work Orders, Fleet & Facilities Management $55,000.00 57@ $72,675.00 $20,000.00 $147,675.00 $9,900.00 $1,275.00
Performance Based Budgeting $60,000.00 33@ $42,075.00 $0.00 $102,075.00 $10,800.00 $1,275.00
Bid Management $22,000.00 9 @ $1,275.00 $11,475.00 $0.00 $33,475.00 $3,960.00 Employee Expense Reimbursement $18,000.00 9@$1,275.00 $11,475.00 $0.00 $29,475.00 $3,240.00 Standard Fuel Interface - SeeComments $5,500.00 7@ $1,275.00 $8,925.00 $0.00 $14,425.00 $990.00 Payroll/HR:
Professional Development $7,700.00 3 @$1,275.00 $3,825.00 $0.00 $11,525.00 $1,386.00 Productivity:
Tyler Pulse $67,500.00 14@ $17,850.00 $0.00 $85,350.00 $16,875.00 $1,275.00
Tyler Pulse Connection (ThirdParty App.) $25,000.00 14@ $17,850.00 $0.00 $42,850.00 $6,250,00 $1,275.00
Tyler Pulse Connection (TylerApplication) $0.00 10@ $12,750.00 $0.00 $12,750.00 $0.00 $1,275.00
Tyler Content Manager Self-Service {SE) $7,500.00 3 @$1,275.00 $3,825.00 $0.00 $11,325.00 $1,350.00 Tyler Content Manager GIS Interface (SE) $5,000.00 3@ $1,275.00 $3,825.00 $0.00 $8,825.00 $900.00 Tyler Content Manager eCommerce (SE) $5,000.00 3 @ $1,275.00 $3,825.00 $0.00 $8,825.00 $900.00 2015-14824 - 11-17-15 CONFIDENTIAL 7 of 12
Optional Tyler Software & Related Services
Description License Imp!. Days lmpl. Cost Data Conversion Module Total Year One Maintenance Tyler Content Manager Auto Indexing and $5,000.00 2 @ $1,275.00 $2,550.00 $0.00 $7,550.00 $900.00 Redaction (SE)
Other:
MUNIS Disaster Recovery Service $0.00 0 @ $1,275.00 $0.00 $0.00 $0.00 $30,000.00 Sub-Total: $283,200.00 $212,925.00 $20,000.00 $516,125.00 $87,451.00 Less Discount: $1,320.00 $0.00 $0.00 $1,320.00 $3,960.00 TOTAL: $281,880.00 167 $212,925.00 $20,000.00 $514,805.00 $83,491.00 Optional Other Services
;Description Quantity· Unit Price Discount Extended Price Project Management Services (5 days/month)
Tyler Forms Work Order/Pick Ticket Library • 4 Forms
TOTAL:
Optional Conversion Details (Prices Reflected Above)
30 1
$6,375.00
$3,600.00
$0.00
$0.00
$191,250.00
$3,600.00
$194,850.00
Description Unit Price Unit Discount Extended Price
Work Order Opt 1 - Work Order Asset
Work Order Opt 2 w Closed Work Order History No Cost Data Work Order Opt 3 - Work Order History With Cost Data
TOTAL:
Unless otherwise indicated in the contract or Amendment thereto, pricing for optional items will be held for Six (6) months from the Quote date or the Effective Date of the Contract, whichever is later.
Customer Approval: Date:
Print Name: P.O.#:
All primary values quoted in US Dollars
2015-14824 - 11-17-15 CONFIDENTIAL
$5,000.00 $0.00 $5,000.00
$7,500.00 $0.00 $7,500.00
$7,500.00 $0.00 $7,500.00
$20,000.00
8 of 12
MUNIS Discount Detail
Description License License Discount License Net Maintenance Year One Maint Year One Malnt Basis Discount Net
Financials:
Accounting/GL/BG/ AP $176,000.00 $5,375.00 $170,625.00 $31,680.00 $31,680.00 $0.00 BMI Asset Track Interface $5,500.00 $330.00 $5,170.00 $990.00 $990.00 $0.00 BMI CollectlT Interface $5,500.00 $330.00 $5,170.00 $990.00 $990.00 $0.00 Cash Management $35,000.00 $2,100.00 $32,900.00 $6,300.00 $6,300.00 $0.00 Contract Management $22,000.00 $1,320.00 $20,680.00 $3,960.00 $3,960.00 $0.00 Fixed Assets $44,000.00 $2,640.00 $41,360.00 $7,920.00 $7,920.00 $0.00 Inventory $44,000.00 $2,640.00 $41,360.00 $7,920.00 $7,920.00 $0.00 Project & Grant Accounting $30,000.00 $1,800.00 $28,200.00 $5,400.00 $5,400.00 $0.00 Purchasing $82,000.00 $4,920.00 $77,080.00 $14,760.00 $14,760.00 $0.00 Payroll/HR:
Payroll w/ESS $45,500.00 $2,730.00 $42,770.00 $8,190.00 $8,190.00 $0.00 HR Management $20,000.00 $1,200.00 $18,800.00 $3,600.00 $3,600.00 $0.00 Revenue:
Accounts Receivable $40,500.00 $2,430.00 $38,070.00 $7,290.00 $7,290.00 $0.00 Tyler Cashiering $60,000.00 $3,600.00 $66,400.00 $10,800.00 $10,800.00 $0.00 General Billing $19,250.00 $1,155.00 $18,095.00 $3,465.00 $3,465.00 $0.00 Productivity:
Citizen Self Service $40,500.00 $2,430.00 $38,070.00 $7,290.00 $7,290.00 $0.00 eProcurement $35,000.00 $2,100.00 $32,900.00 $6,300.00 $6,300.00 $0.00 Munis Analytics & Reporting $158,500.00 $9,510.00 $148,990.00 $28,530.00 $28,530.00 $0.00 Tyler Content Manager SE $60,000.00 $3,600.00 $56,400.00 $10,800.00 $10,800.00 $0.00 Tyler Forms Processing $19,500.00 $1,170.00 $18,330.00 $3,900.00 $3,900.00 $0.00 Other:
CAFR Statement Builder $25,000.00 $1,500.00 $23,500.00 $4,500.00 $4,500.00 $0.00 OSDBA Contract Services $0.00 $0.00 $0.00 $30,000.00 $0.00 $30,000.00 TOTAL: $967,750.00 $52,880.00 $914,870.00 $204,585.00 $174,585.00 $30,000.00 2015-14824 - 11-17-15 CONFIDENTIAL 9 of 12
Optional MUNIS Discount Detail
Description License License Discount License Net Maintenance Year One Maint Year One Maint Basis Discount Net
Financials:
Work Orders, Fleet & Facilities Management $55,000.00 $0.00 $55,000.00 $9,900.00 $0.00 $9,900.00 Performance Based Budgeting $60,000.00 $0.00 $60,000.00 $10,800.00 $0.00 $10,800.00 Bid Management $22,000.00 $1,320.00 $20,680.00 $3,960.00 $3,960.00 $0.00 Employee Expense Reimbursement $18,000.00 $0.00 $18,000.00 $3,240.00 $0.00 $3,240.00 Standard Fuel Interface - SeeComments $5,500.00 $0.00 $5,500.00 $990.00 $0.00 $990.00 Payroll/HR:
Professional Development $7,700.00 $0.00 $7,700.00 $1,386.00 $0.00 $1,386.00 Productivity:
Tyler Pulse $67,500.00 $0.00 $67,500.00 $16,875.00 $0.00 $16,875.00 Tyler Pulse Connection (ThirdParty App.) $25,000.00 $0.00 $25,000.00 $6,250.00 $0.00 $6,250.00 Tyler Pulse Connection (TylerApplication) $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Tyler Content Manager Self~Service (SE) $7,500.00 $0.00 $7,500.00 $1,350.00 $0.00 $1,350.00 Tyler Content Manager GIS Interface (SE) $5,000.00 $0.00 $5,000.00 $900.00 $0.00 $900.00 Tyler Content Manager eCommerce (SE) $5,000.00 $0.00 $5,000.00 $900.00 $0.00 $900.00 Tyler Content Manager Auto Indexing and $5,000.00 $0.00 $5,000.00 $900.00 $0.00 $900.00 Redaction (SE)
Other:
MUNIS Disaster Recovery Service $0.00 $0.00 $0.00 $30,000.00 $0.00 $30,000.00 Total: $283,200.00 $1,320.00 $281,880.00 $87,451.00 $3,960.00 $83,491.00 2015-14824- 11-17-15 CONFIDENTIAL 10 of 12
Comments
Tyler's OSDBA Service is calculated at 25% of the MUNIS annual maintenance. There is a $2,500 minimum annual fee and a $30,000 maximum annual fee.
Tyler's Disaster Recovery Service is calculated at 25% of the MUNIS annual maintenance. There is a $5,000 minimum annual fee and a $30,000 maximum annual fee for Disaster Recovery service. The Disaster Recovery fees are applicable only to one Live MUNIS database and excludes all test and training databases.
Tyler recommends the use of a 128-bit SSL Security Certificate for any Internet Web Applications, such as the MUNIS Web Client and the MUNIS Self Service applications ifhosted by the Client. This certificate is required to encrypt the highly sensitive payroll and financial information as it travels across the public internet. There are various vendorswho sell SSL Certificates, with all ranges of prices.
Conversion prices are based on a single occurrence of the database. If additional databases need to be converted, these will need to be quoted.
Tyler's quote contains estimates of the amount of services needed, based on our preliminary understanding of the size and scope of your project. The actual amount of servicesdepends on such factors as your level of involvement in the project and the speed of knowledge transfer.Unless otherwise noted, prices submitted in the quote do not include travel expenses incurred in accordance with Tyler's then-current Business Travel Policy.
Tyler's prices do not include applicable local, city or federal sales, use excise, personal property or other similar taxes or duties, which you are responsible for determining and remitting.
In the event Client cancels services less than two (2) weeks in advance, Client is liable to Tyler for (i) all non-refundable expenses incurred by Tyler on Client's behalf; and (ii)daily fees associated with the cancelled services if Tyler is unable to re-assign its personnel.
Tyler provides onsite training for a maximum of 12 people per class. In the event that more than 12 users wish to participate in a training class or more than one occurrence of aclass is needed, Tyler will either provide additional days at then-current rates for training or Tyler will utilize a Train-the-Trainer approach whereby .the client designated attendeesof the initial training can thereafter train the remaining users.
Tyler's Standard Fuel Interface is available from several vendors. Fuelman, FuelForce, Phoenix AFC, Phoenix SCC, Fuel Master, TRN85-Fuelman, Fuelmaster-Plus and Gasboy CFN. If your vendor does not appear on this list, we will need to quote a Custom Interface in addition to the Standard Interface to cover the additional development costs.
In the event Client acquires from Tyler any edition of Tyler Content Manager software other than Enterprise Edition, the license for Content Manager is restricted to use with Tylerapplications only. If Client wishes to use Tyler Content Manager software with non-Tyler applications, Client must purchase or upgrade to Tyler Content Manager Enterprise ) Edition.
Tyler's form library prices are based on the actual form quantities listed, and assume the forms will be provided according to the standard Munis form template. Any forms inaddition to the quoted amounts and types, including custom forms or forms that otherwise require custom programming, are subject to an additional fee. Please also note that useofthe Tyler Forms functionality requires the use of approved printers as well. You may contact Tyler's support team for the most current list of approved printers.
Financial library includes: 1 NP check, 1 EFT/ACH, 3 Purchase orders, 1 Contract, 1099M, 1099INT, 1099S, and 10990.
General Billing library includes: 1 invoice, 1 statement, 1 general billing receipt and 1 miscellaneous receipt.
Programming for check reconciliation import and positive pay export ·assumes one bank format each. Multiple bank formats are extra. 2015-14824 - 11-17-15 CONFIDENTIAL 11 of 12
Comments
Includes digitizing two signatures, additional charges will apply for additional signatures.
Tyler Pulse includes up to 20 performance indicators.
Project Management includes project planning, kickoff meeting, status calls, task monitoring, verification and transition to support.
Tyler Forms Payroll Core library includes: 1 PR check, 1 direct deposit, 1 vendor from payroll check, 1 vendor from payroll direct deposit, W2, W2c, and 1099 R.
Personnel Actions Forms Library includes: 1 Personnel Action form - New and 1 Personnel Action Form - Change.
Work Order & Pick Ticket Library includes: 1 Work Order - Services, 1 Work Order - Inventory, 1 Pick Ticket and 1 Delivery Ticket.
Tyler's cost is based on all of the proposed products and services being obtained from Tyler. Should significant portions of the products or services be deleted, Tyler reserves theright to adjust prices accordingly.
The MUNIS Accounts Payable module utilizes a label printer for batch-scanned document indexing. This printer is to be provided by the client and must support multi-pageAdobe PDF files, such as the Brother QL-700.
In the event a self-hosted customer opts to enroll as a beneficiary under Tyler's source code escrow agreement, Tyler will provide the paperwork required for enrollment. That selfhostedcustomer will be billed, on an annual basis, directly by Tyler's escrow agent, and all such fees.must be paid directly to that escrow agent. Rates for subsequent years aresubject to change at the discretion of Tyler's escrow agent.
The Tyler Software Product Tyler Forms Processing must be used in conjunction with a Hewlett Packard printer supported by Tyler for printing checks.
BMI CollectIT w/ data validation enabled - USB, 802.11 b/g Wireless Data Com Utility for WM 6.1/6.5 devices w/ remote Install/training up to 4 hrs & ( 1) yr phone support,Subsequent support and upgrade plans are available directly through BMI Inccludes a Unitech PA 690 PDT Kit with WIN 6.5, 26 Key keypad, laser, 807 MHZ Processor, 2batteries, Power Supply, Pistol Grip, Cradle, 802.11 b/g radio & BMI Collect-IT PDT Users License Includes: 1 yr Phone support/upgrades for CollectIT and 1 yr depot parts andLabor warranty on the PA 690 Portable Data Terminal.
AssetTrak PPC Software, PA690 Portable Data terminal, Integrated Laser Scanner, USB Corn/Charging cable w/ps, PDT Users Licenses for TrakSync and AssetTrak PPCincludes: 1 year phone support & software upgrades, Subsequent support and upgrade plans are available directly through BMI. Up to 4 hrs of remote Install/training viaGoToMeeting.
2015-14824 - 11-17-15 CONFIDENTIAL 12 of 12
Exhibit B
Invoicing and Payment Policy
Tyler Technologies, Inc. will provide you with the software, products, and services set forth in the Investment Summary of your License and Services Agreement. Capitalized terms not otherwise defined will have the meaning assign·ed to such terms in your License and Services Agreement.
Invoicing: We will invoice you for the applicable license fees, products, and services in the Investment Summary as set forth below. Your rights to dispute any invoice are set forth in your License and Services Agreement.
1. Tyler Software.
1.1 License Fees: License fees are invoiced as follows: (a) 25% ($228,717.50} on the Effective Date; (b) 25% ($228,717.50} on the date when we make the Tyler Software available to you for downloading (the "Available Download Date"); (c) 25% upon the Installation of the Tyler Software: $228,717.50;; and (d} 25 % ($228,717.50) on the earlier of project closure or 12/29/17. To the extent project closure is delayed solely by Tyler's failure to perform pursuant to the Agreement, Client may delay the payment due according to this section
1.l(d) by a period of time equal to the delay caused by Tyler's failure to perform.
1.2 Maintenance and Support Fees:
1.2.1 Year One Maintenance. The first year maintenance and support fees for the one (1) year period commencing on the Installation date ($174,585) are waived.
1.2.2 Year Two Maintenance.
1.2.2.1 Second year maintenance fees for modules listed in Phase 1 are payable upon the first anniversary of Installation Date.
1.2.2.2 Second year maintenance fees for modules listed in Phase 2 are waived until October 1, 2017. Tyler shall invoice Client maintenance fees for modules listed in Phase 2, prorated for the term commencing October 1, 2017 and ending on the day preceding the second anniversary of the Installation Date.
1.2.3 Subsequent maintenance and support fees are invoiced annually in advance on each subsequent anniversary ofthe Installation Date. Tyler agrees to cap increases to the maintenance and support fees for the first five (5) annual renewals to five percent (5%) per annum.
2. Professional Services.
2.1 Project Planning Services: Project planning services fee ($13,000) is invoiced upon delivery of the Implementation Planning Document.
2.2 Consulting Services: Consulting services are invoiced 50% upon Client acceptance of Business System Design documents and 50% upon Client acceptance of Custom Desktop Procedures, by module.
2.3 Data Conversion Services: Data conversion services are invoiced 50% upon initial delivery of converted data (automatic electronic notification) and 50% upon Client Acceptance to load converted data into Live/Production environment (automatic electronic notification), by conversion option.
2.4 Implementation and Other Professional Services (excluding training): Implementation and other professional services (excluding training) are bille_d at daily rates and invoiced as delivered.
2.5 Training Services: Training services are billed in half-day and full-day increments and invoiced as delivered in accordance with the standards set forth in Section 4.7 of the Agreement.
2.6 Requested Modifications to the Tyler Software: Requested modifications to Tyler Software are invoiced 50% upon delivery of specifications and 50% upon delivery ofthe applicable modification. ,You must report any failure of the modification to conform to the specifications within thirty (30) days of delivery; otherwise, the modification will be deemed to be in compliance with the specifications after the 30-day window has passed.
Notwithstanding the foregoing, depending on the complexity of the modification and the difficulty in testing said modification, Client may reasonably request additional time for testing before the above referenced thirty (30) day window has expired. Tyler will not unreasonably refuse to honor such request.
2.7 Notwithstanding the foregoing, fees for the two hundred ninety three (293) Implementation days will be invoiced in accord with section 2.5 above provided that fifteen percent (15%) of the fee for each day will be deferred until sixty (60) days following the earlier of the planned Go live-date for the phase (as mutually agreed in the Project plan or Statement of Work) or the actual Go-live date. In the event a live date is delayed, and such delay is wholly attributable to Tyler's action or inaction inconsistent with it rights and responsibilities pursuant to this Agreement, Client may delay a payment required pursuant to this section by an amount oftime equal to such delay.
3. Other Services and Fees.
3.1 Operating System I Database Administration (OS/OBA) Services: Tyler shall provide OS/OBA Services in accordance with Exhibit K hereto. OS/OBA Services year one fee ($30,000) is invoiced on the Installation Date. OS/OBA Se.rvices will renew automatically for additional one (1) year terms at our then-current OS/OBA fee, unless terminated in writing by either party at least thirty (30) days prior to the end of the then-current term. Additionally, Tyler will hold the annual fee for OS/DBA Services at $30,000 for the first four (4) annual renewals of OS/OBA Services.
4. Third Party Products.
4.l Third Party Software License Fees: License fees for Pattern Stream Software are invoiced by Tyler upon the mutually agreed installation date for Pattern Stream Software.
4.2 Third Party Software Maintenance: The first year maintenance fee for the Pattern Stream Software is invoiced by Tyler upon the mutually agreed installation date for Pattern Stream Software. Year 2 and subsequent annual maintenance fees will be invoiced directly by Pattern Stream.
4.3 Third Party Hardware: Third Party Hardware fees are invoiced upon delivery.
5. Performance Bond. The fee for the Performance Bond is payable by Client upon the Effective Date.
6. Expenses. The service rates in the Investment Summary do not include travel expenses.
Expenses will be billed as incurred and only in accordance with our then-current Business Travel Policy. Our current Business Travel Policy is attached to this Exhibit B at Schedule 1. Copies of receipts will be provided on an exception basis at no charge. You will incur an administrative fee if you request receipts for all non-per diem expenses. Receipts for mileage or miscellaneous items less than twenty-five dollars are not available.
Payment. Payment for undisputed invoices is due within forty-five (45) days of the invoice date subject to the right to withhold set forth at Section 6.3 of the Agreement. Maintenance and support fees are due on each anniversaryofthe Installation Date. We preferto receive payments electronically. Our electronic payment information is:
Bank:
ABA:
Account:
Beneficiary:
Wells Fargo Bank, N.A.
420 Montgomery
San Francisco, CA 94104
121000248
4124302472
Tyler Technologies, Inc. - Operating
1. Air Travel
A. Reservations & Tickets
•••• ••• •
Exhibit B
Schedule 1
Business Travel Policy
Tyler's Travel Management Company (TMC) will provide an employee with a direct flight within two hours before or after the requested departure time, assuming that flight does not add more than three hours to the employee's total trip duration and the fare is within $100 (each way) of the lowest logical fare. If a net savings of $200 or more (each way) is possible through a connecting flight that is within two hours before or after the requested departure time and that does not add more than three hours to the employee's total trip duration, the connecting flight should be accepted.
Employees are encouraged to make advanced reservations to take full advantage of discount opportunities. Employees should use all reasonable efforts to make travel arrangements at least two (2) weeks in advance of commitments. A seven day advance booking requirement is mandatory. When booking less than seven days in advance, management approval will be required.
Except in the case of international travel where a segment of continuous air travel is scheduled to exceed six hours, only economy or coach class seating is reimbursable.
B. Baggage Fees
Reimbursement of personal baggage charges are based on trip duration as follows:
• Up to five days= one checked bag
• Six or more days= two checked bags
Baggage fees for sports equipment are not reimbursable.
2. Ground Transportation
A. Private Automobile
Mileage Allowance - Business use of an employee's private automobile will be reimbursed at the current IRS allowable rate, plus out of pocket costs for tolls and parking. Mileage will be calculated by using the employee's office as the starting and ending point, in compliance with IRS regulations. Employees who have been designated a home office should calculate miles from their home. •.;:s.. tyler •
1 B. Rental Car
Employees are authorized to rent cars only in conjunction with air travel when cost, convenience, and the specific situation reasonably require their use. When renting a car for Tyler business, employees should select a "mid-size" or "intermediate" car. "Full" size cars may be rented when three or more employees are traveling together. Tyler carries leased vehicle coverage for business car rentals; additional insurance on the rental agreement should be declined.
C. Public Transportation
Taxi or airport limousine services may be considered when traveling in and around cities or to and from airports when less expensive means of transportation are unavailable or impractical. The actual fare plus a reasonable tip (15-18%) are reimbursable. In the case of a free hotel shuttle to the airport, tips are included in the per diem rates and will not be reimbursed separately.
D. Parking & Tolls
When parking at the airport, employees must use longer term parking areas that are measured in days as opposed to hours. Park and fly options located near some airports may also be used. For extended trips that would result in excessive parking charges, public transportation to/from the airport should be considered. Tolls will be reimbursed when receipts are presented.
3. Lodging
Tyler's TMCwill select hotel chains that are well established, reasonable in price, and conveniently located in relation to the traveler's work assignment. Typical hotel chains include Courtyard, Fairfield Inn, Hampton Inn, and Holiday Inn Express. If the employee has a discount rate with a local hotel, the hotel reservation should note that discount and the employee should confirm the lower rate with the hotel upon arrival. Employee memberships in travel clubs such as MA should be noted in their travel profiles so that the employee can take advantage of any lower club rates. "No shows" or cancellation fees are not reimbursable if the employee does not comply with the hotel's cancellation policy.
Tips for maids and other hotel staff are included in the per diem rate and are not reimbursed separately.
4. Meals and Incidental Expenses
Employee meals and incidental expenses while on travel status are in accordance with the federal per diem rates published by the General Services Administration. Incidental expenses include tips to maids, hotel staff, and shuttle drivers and other minor travel expenses. Per diem rates are available at www.gsa.gov/perdiem.
2 A. Overnight Travel
For each full day of travel, all three meals are reimbursable. Per diems on the first and last day of a trip are governed as set forth below.
Departure Day
Depart before 12:00 noon
Depart after 12:00 noon
Return Day
Return before 12:00 noon
Return between 12:00 noon & 7:00 p.m.
Return after 7:00 p.m.*
Lunch and dinner
Dinner
Breakfast
Breakfast and lunch
Breakfast, lunch and dinner
*7:00 p.m. is defined as direct travel time and does not include time taken to stop for dinner The reimbursement rates for individual meals are calculated as a percentage of the full day per diem as follows:
• Breakfast 15%
• Lunch 25%
• Dinner 60%
B. Same Day Travel
Employees traveling at least 100 miles to a site and returning in the same day are eligible to claim lunch on an expense report. Employees on same day travel status are eligible to claim dinner in the event they return home after 7:00 p.m. *
*7:00 p.m. is defined as direct travel time and does not include time taken to stop for dinner
5. Internet Access - Hotels and Airports
Employees who travel may need to access their e-mail at night. Many hotels provide free high speed internet access and Tyler employees are encouraged to use such hotels whenever possible. If an employee's hotel charges for internet access it is reimbursable up to $10.00 per day. Charges for internet access at airports are not reimbursable.
3 • • •• •• • ••
Exhibit C
Maintenance and Support Agreement
Tyler Technologies, Inc. will provide you with the following maintenance and support services for the Tyler Software licensed to you. Capitalized terms not otherwise defined will have the meaning assigned to such terms in your License and Services Agreement.
1. Term. We provide maintenance and support services on an annual basis. The initial term commences on the Installation date and remains in effect for one (1) year. The term will renew automatically for additional one (1) year terms at Tyler's then-current maintenance and support fees (but subject to Exhibit B, Section 1.2.3), unless terminated in writing by either party at least thirty (30) days prior to the end of the then-current term.
2. Maintenance and Support Fees. The maintenance and support fees for the Tyler Software licensed to you are listed in the Investment Summary of your Agreement. Those amounts are payable in accordance with our Invoicing and Payment Policy. We will provide you with at least forty-five (45) days written notice of any change in your annual maintenance and support fees. We reserve the right to suspend maintenance and support services if you fail to pay undisputed maintenance and support fees within sixty (60) days of the due date. We will reinstate maintenance and support services only if you pay all past due maintenance and support fees, including all fees for the periods during which services were suspended.
3. Maintenance and Support Services. As long as you timely pay your maintenance and support fees, we will, consistent with our then-current Support Call Process:
3.1 perform our maintenance and support obligations in a professional, good, and workmanlike manner, consistent with industry standards, to conform the Tyler Software to the warranty set forth in your Agreement; provided, however, that if you modify the Tyler Software without our consent, our obligation to provide maintenance and support services on and warrant the Tyler Software will be void;
3.2 provide telephone support during our established support hours provided, however, that calls received before the end of normal support hours for a Priority 1 call will be worked on until a resolution or remediation (work-around) is provided;
3.3 maintain personnel that are sufficiently trained to be familiar with the Tyler Software and Third Party Software in order to provide maintenance and support services;
3.4 provide you with a copy of all releases to the Tyler Software (including updates and enhancements) that we make generally available without additional charge to customers who have a maintenance and support agreement in effect; and
·•::~. tyler •
1 3.5 support prior releases of the Tyler Software in accordance with our then-current release life cycle policy.
3.6 maintain the Tyler Software and Tyler Forms Libraries provided to Client in compliance with applicable state and federal mandates.
3.7 After-hours support. Tyler will make available support services outside of normal support hours provided:
3.7.1 Client makes request no less than two (2) weeks in advance (although Tyler will reasonably cooperate with the City in attempting to schedule services with less than two (2) weeks advance notice);
3.7.2 Client purchases at least four (4) consecutive hours; and
3.7.3 Then-current hourly rates apply. Tyler will hold the current hourly rate of $150.00 for one (1) year from the Effective Date.
4. Client Responsibilities. We will use all reasonable efforts to perform any maintenance and support services remotely. Therefore, you agree to maintain a high-speed internet connection capable of connecting us to your PCs and server(s). You agree to provide us with a login account and local administrative privileges as we may reasonably require to perform remote services. We will, at our option, use the secure connection to assist with proper diagnosis and resolution, subject to any reasonably applicable security protocols. If we can't resolve a support issue remotely, we may be required to provide onsite services. In such event, you agree to provide us with full and free access to the Tyler Software, working space, adequate facilities within a reasonable distance from the equipment, and use of machines, attachments, features, or other equipment reasonably necessary for us to provide the maintenance and support services, all at no charge to us. We strongly recommend that you also maintain a VPN for backup connectivity purposes.
5. Excluded Services. Maintenance and support fees do not include fees for the following services: (a) initial installation or implementation of the Tyler Software; (b) onsite maintenance and support (unless Tyler cannot remotely correct a defect in the Tyler Software); (c) application design; (d) other consulting services; (e) maintenance and support of an operating system or hardware; (f) support outside our normal business hours as listed in our then-current Support Call Process; or (g) installation, training services, or third party product costs related to a new release. Requested maintenance and support services beyond those outlined in this section will be billed to you at our then current rates.
6. Current Support Call Process. Our current Support Call Process is attached to this Exhibit Cat Schedule 1. 2 •• ••• •• ••• •
Exhibit C
Schedule 1
Support Call Process
Tyler Technical Support Department for Munise,
Goal: To provide an effective support mechanism that will ensure timely resolution to calls, resulting in highlevel client satisfaction.
Contact Us
Call Tyler's toll free number (800-772-2260) or log a support request on line through the Tyler Client Portal available at Tyler's Support Web site (www.tvlertech.com).
Support Organization
Tyler's Technical Support Department for its ERP/Schools Division (also referred to as "Munis") is divided into multiple teams: Financials; Payroll/HR/Pension; Tax/Other Revenue and Collections; Utility Billing and Collections; OS/OBA (Operating System and Database Administration); and TylerForms and Reporting Services.
These "product-specific" teams allow support staff to focus on a group of products or services. A group of specialists assigned to each team handle calls quickly and accurately.
Each team consists of a Munis Support Product Manager, Support Analysts, and Technical Support Specialists.
The Support Product Manager is responsible for the day-to-day operations of the team and ensures we provide exceptional technical support to our clients. The Support Analysts are responsible for assisting the team with clients' issues, and provide on-going team training. Technical Support Specialists are responsible for diagnosing and resolving client issues in a timely and courteous manner.
Standard Support Hours
Applications Hours
Financia!s 8:00am-9:00pm EST Monday-friday
Payrofl/HR/Pension 8:00am-9:00pm ESTMonday-friday
Tax/Other Revenue & Coflections 8:00am-6:00pm EST Monday-Friday Utility BiHing & Collections 8:00am-8:00pm EST Monday-Friday OS/OBA 8:00am-9:00pm EST Monday-friday
TylerForms, Reporting Services and TCM 8:00am-9:00pm EST Monday-Friday 1 Focus on Incoming Rate
When you call Technical Support, your call is answered by a Support Technician, or is transferred into the Support voice mail. Our goal is to capture 75 percent of our daily incoming calls, which means you will often start working with a Support Specialist immediately upon calling Tyler.
Leaving Messages for Support
When leaving a message on the Support voice mail, ensure the following information is contained within the message:
• your full name (first name, last name} and the site you are calling for/from; • a phone number where you can be reached;
• the details of the issue or question you have (i.e.: program, • process, error message}; • the priority of the issue (1, 2, 3, or 4); and
• when you will be available for a return call (often Support will call back within an hour of receiving your message}.
Paging
All client questions are important to us. There may be times when you are experiencing a priority 1 critical issue and all technicians for the requested team are on the line assisting clients. In this circumstance, it is appropriate to press "O" to be redirected to the operator. The operator will page the team you need to contact. We ask that you reserve this function for those times when Munis is down, or a mission critical application is down and you are not able to reach a technician immediately.
Online Support
Some questions can be handled effectively by email. Once registered as a user on Tyler's Support Web site at www.tylertech.com, you can ask questions or report issues to Support through ·"Customer Tools". Tyler's Client Portal (TCP) allows you to log an incident to Technical Support anytime from any Internet connection. All TCP account, incident, and survey data is available in real-time.
Your existing contact information defaults when you add a new Support incident. You will be asked for required information including Incident Description, Priority, Product Group, and Product Module. Unlimited work-note text is available for you to describe the question or problem in detail, plus you can attach files or screenshots that may be helpful to Support.
When a new incident is added, the incident number is presented on the screen, and you will receive an automated email response that includes the incident number. The new incident is routed to the appropriate Technical Support Team queue for response. They will review your incident, research the item, and respond via email according to the priority of the incident.
Customer Relationship Management System
Every call or email from you is logged into our Customer Relationship Management System and given a unique call number. This system tracks the history of each incident, including the person calling, time of the call, priority of the call, description of the problem, support recommendations, client feedback, and resolution. For registered users on Tyler's Support Web site {www.tylertech.com), a list of calls is available real-time under the Tyler Client Portal (TCP).
2 Call Numbers
Support's goal is to return clients' calls as soon as possible. Priority 1 calls received before the end of business will be responded to that day. ~f you are not available when we call back, we will leave a message with the open call number on your voice mail or with a person in your office. When you call back, you can reference this call number so you do not have to re-explain the issue.
An open call number is also given to you once an initial contact has been made with Support and it has been determined that the issue can't be resolved during the initial call. The open call number lets you easily track and reference specific open issues with Support.
Call Response Goals
Support will use all reasonable efforts to address open calls as follows:
·- Open Maxlmum number of days a Support man*rs and analysts Catt sUfJPC)rt ca41 Is open review open calls
Priority
1 Less than a day Daily
2 10 Days or less Every other day
3 30 Days or less Weekly
4 60 Days or less Weekly
Call Priorities
A call escalation system is in place where, each day, Support Analysts and Product Support Managers review open calls in their focus area to monitor progress.
Each call logged is given a priority (1, 2, 3, and 4) according to the.client's needs/deadlines. The goal of this structure is to clearly understand the importance of the issue and assign the priority for closure. The client is responsible for setting the priority of the call. Tyler Support for Munis tracks responsiveness to priority 1, 2, and 3 calls each week. This measurement allows us to better evaluate overall client satisfaction.
Priority 1 Call - issue is critical to the client, the Munis application or process is down.
Priority 2 Call - issue is severe, but there is a work around the client can use.
Priority 3 Call - issue is a non-severe support call from the client.
Priority 4 Call - issue is non-critical for the client and they would like to work with Support as time permits.
Following Up on Open Calls
Some issues will not be resolved during the initial call with a Support Technician. If the call remains open, the technician will give you an open call number to reference, and will confirm the priority ofthe incident.
If you want to follow up on an open call, simply call the appropriate Support Team and reference the call number to the Technician who answers or leave this information in your message. Referencing the open call number allows anyone in support to quickly follow up on the issue. You can also update the incident through TCP on Tyler's Web site (www.tylertech.com) and add a note requesting follow-up. •.;j.. tyler •
3 Escalating a Support Call
If the situation to be addressed by your open call has changed and you need to have the call priority adjusted, please call the appropriate Support Team and ask to be connected to the assigned technician. If that technician is unavailable, another technician on the team may be able to assist you, or will transfer you to the Product Support Team Manager. If you feel you are not receiving the service you need, please call the appropriate Product Manager and provide them with the open call number for which you need assistance. The Product Manager will follow up on your open issue and determine the necessary action to meet your needs.
Technical Support Product Managers:
Financials. Payroll and Human Resources
Brian Gilman
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Peggy Wintle
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Evan Smith Parirer laChance
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Tracy Silw
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Ed Ha.ererty
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$cnja Johnson
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Ben King
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M 1che.le Brown .
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. PatieAee Stetson
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Ryan Blair
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If you are unable to reach the Product Manager, please call CJ Mccarron, Vice President of Technical Support at 800-772-2260, ext.4124([email protected]).
Resources
A number of additional resqurces are available to you to provide a comprehensive and complete support experience.
• Managed Internet Update (MIU): Allows you to download and install critical and high priority fixes as soon as they become available.
• Release Admin Console: Allows you to monitor and track the availability of all development activity for a particular release directly from Munis.
4 l
'
• KnowledgeBase: A fully searchable depository of thousands of documents related to Munis processing, procedures, release info, helpful hints, etc.
Remote Support Tool
Some Support calls may require further analysis of your database or setup to diagnose a problem or to assist you with a question. GoToAssist~ shares your desktop via the Internet to provide you with virtual on-site support. The GoToAssist tool from Citrix (www.citrix.com) provides a highly secure connection with 128-bit, end-to-end AES encryption. Support is able to quickly connect to your desktop and view your site's setup, diagnose problems, or assist you with screen navigation.
At the end of each GoToAssist session, there is a quick survey you should complete so we have accurate and up-to-date feedback on your Support experiences. We review the survey data in order to continually improve our Support services.
Email Registration
Clients can go to our Web site and register for email "groups" based on specific Munis applications. We use these groups to inform clients of issues, and to distribute helpful technical tips and updated technical documentation. The survey information allows you to update your registration at any time, and you may unregister for one or more distribution lists at any time.
Tyler Web site
Once you have registered as a user on Tyler's Support Web site (www.tylertech.com), you have access to "Customer Tools" and other information such as on line documentation, user forums, group training schedule/sign-up, and annual user conference updates/registration.
Timely TCP Progress Updates
Our technicians are committed to providing you timely updates on the progress of your open support incidents via the Tyler Client Portal. The frequency of these updates is determined by issue priority.
Priority 1 Incidents - Daily updates (only if phone contact is not possible) Priority 2 Incidents - Weekly Updates
Priority 3 Incidents - Biweekly Updates
Priority 4 Incidents - Biweekly Updates
Updates will also be provided for any issue, regardless of priority, when action items have been completed or when there is pertinent information to share.
5 FINITE MATTERS LTD.
SOFTWARE LICENSE AGREEMENT
Notice to User:
By clicking on the "I ACCEPT" button, you are consenting to be bound by and are becoming a party to this License Agreement, which is a legal document between you and Finite Matters Ltd., a Virginia corporation ( "Licensor"). If you do not agree to all of the terms of this License Agreement, click the "I DO NOT ACCEPT" button.
By installing or using the accompanying software, you agree to be bound by the terms of this Agreement. If you do not agree, you are not licensed to use the software, and you must remove the software from your system and return any tangible copies of the software in your possession or control to Licensor.
Software License
License Grant. Licensor hereby grants to you a non-exclusive, NON-TRANSFERABLE, limited license (the "License") to use the accompanying software application and data (the "Program") on any single computer or virtual machine computer, so long as the Program is in use on only one computer at any time. If you have multiple licenses for the Program, then at any time you may have as many copies of the Program in use as you have licenses. The Program is in use on a computer when it is loaded into the temporary memory (i.e., RAM) of that computer.
Copying. You may make that number of copies of the Program that are necessary for you to use the Program in accordance with the license granted above. You also may copy the Program for archival purposes. Each copy made by you must include the copyright/proprietary rights notice(s) embedded in and affixed to the Program. All other copying of the Program, any part thereof, or the accompanying documentation (if any) is prohibited.
Other Restrictions. YOU MAY NOT DISTRIBUTE, LOAN, LEASE OR RENT THE PROGRAM,
BUT YOU MAY TRANSFER YOUR RIGHTS UNDER THIS LICENSE ON A PERMANENT BASIS IF YOU
TRANSFER THIS LICENSE, THE PROGRAM AND ALL ACCOMPANYING WRITTEN MATERIALS AND RETAIN NO COPIES, AND THE RECIPIENT AGREES TO THE TERMS OF THIS AGREEMENT. ANY
TRANSFER OF THE PROGRAM MUST INCLUDE THE MOST RECENT UPDATE AND ALL PRIOR VERSIONS. Under no circumstances may you modify, translate, reverse engineer, decompile, or disassemble the Program, any associated data or subscription files, or create any derivative work thereof.
Title. Title to the Program is not transferred t9 you. Ownership of the Program and all subsequent copies of the Program regardless of the form or media in or on which the original and other copies subsequently may exist, remains in Licensor.
Limited Warranty and Disclaimer
Limited Warranty. Licensor warrants that , for a period of 365 days from the date you activate the Program: (i) the medium, if any, upon which the Program is provided to you by Licensor will be free from defects in material and workmanship under normal use, and (ii) the Program will perform substantially in accordance with its accompanying documentation when operated in the computing environment specified by Licensor. Licensor does not warrant, however, that the Program will meet your requirements, that your use of the Program will be uninterrupted, that the operation of the Program will be error-free or ·secure, or that any defects in the Program will be corrected. Modifications to the Program, subjection of the Program to accident, abuse, or improper use, or violation of the terms of this Agreement shall void this limited warranty immediately. This warranty shall not apply if the Program is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the Program was designed to be used as described in the accompanying documentation.
DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PROGRAi~ AND ANY DOCUMENTATION ARE PROVI DED "AS IS," "WITH ALL FAULTS" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO., WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN
ADDITION, THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PROGRAM OR AGAINST INFRINGEMENT.
Limitation of Remedies. Licensor's entire liability and your exclusive remedy for breach of any expressed or implied warranty shall be, at Licensor's option, either (i) replacement of the Progra~ or media that does not conform to the Limited Warranty contained in t his Agreement and which is returned to Licensor with a copy of your purchase receipt prior to expiration of the applicable warranty period, or (ii} a refund of your purchase price for the Program upon return of the Program and all documentation with a copy of your purchase receipt prior to expiration of the applicable warranty period and certification that you have erased all other copies of the Program in your control or possession. Any replacement Program will be warranted for the remainder of the original warranty period or 30 days, whichever is longer.
LIMITATION OF LI ABILITY. IN NO EVENT WILL LICENSOR BE LIA3LE FOR ANY LOST
PROFITS OR OTHER DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, CONSEQUENTIAL OR ANY OTHER TYPE OF DAMAGES, ARISING OUT OF THIS
AGREEMENT OR THE USE OF THE PROGRAM LICENSED HEREUNDER, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES .
General Provisions
Copyright. The Program is protected by the copyright laws of the United States and international copyright treaties, and should be treated like other copyrighted material.
Termination. This Agreement and the License granted herein may be terminated by Licensor, at its sole option, if you cornrait a material breach of this Agreement.
This Agreement and the License granted herein shall terminate immediately upon your receipt of a new version or update of the Program. Upon any termination of this Agreement, you must cease use of the Program, destroy a l l copies then in your possession or control, and take such other action as Licensor may reasonably require to ensure that no copies of the Program remain in your possession or control.
Export Controls. The Program, the Program technology and its related documentation may not be exported or reexported in violation of the U.S. Export Administration Act and its implementing regulations.
Governing Law. This Agreemen t shall be governed by and construed under the laws o f the Commonwealth of Virginia, U.S.A. as such l aws apply to agreements between Virginia residents entered into and to be performed within Virginia, except as governed by Federal law. A.~Y ACTION OR PROCEEDING SHALL BE BROUGHT IN A FEDERAL
OR STATE COURT OF COMPETENT JURISDICTION IN THE COUNTY OF GOOCHLAND, VIRGINIA OR THE CITY OF RICHMOND, VIRGINIA, AND IN NO OTHER JURISDICTION.
Miscellaneous. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the validity and enforceability of the other provisions will not be affected thereby. Failure of a party to enforce any provision of this Agreement does not constitute and should not be construed as a waiver of such provision or of the right to enforce such provision. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
U.S. Government Restricted Rights.
The Program and any documentation are provided to the Government with RESTRICTED RIGHTS as defined at 48 CFR 27.401 or at DFARS 252.227-7013(a), as appropriate to the procuring agency. Notwithstanding any other lease or license agreement that pertains to, or accompanies the delivery of, the Program, use, duplication or disclosure by the U.S. Government is subject to restrictions set forth in subparagraphs (c) (1) and (c) (2) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19, when procured or used by civilian agencies of the U.S.
Government, or in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, when procured or used by agencies of the U.S. Department of Defense, and in similar clauses in the NASA FAR Supplement, where applicable. U.S. Government Restricted Rights Contractor/manufacturer is Finite Matters Ltd. , 3064 River Road West , Suite B, Goochland, Virginia 23063.
Contact Us.
If you have any questions concerning this Agreement, or if you desire to contact Licensor for any reason, please contact Finite Matters Ltd. at 3064 River Road West, Suite B, Goochland, Virginia 23063.
SOFTWARE MAINTENANCE AGREEMENT
THIS SOFTWARE MAINTENANCE AGREEMENT made and entered into between Finite Matters Ltd., a Virginia corporation (hereinafter "FML"), and the undersigned customer (hereinafter "User") determines the obligations of FML for the maintenance of the Software (hereinafter defined).
1. Definitions. As used in this Agreement, the following definitions shall apply:
(a) "Software" shall mean the computer program(s), in object code form, identified in Schedule A, annexed hereto and made a part hereof. (b) "Designated Equipment" shall mean the central processing unit and its associate equipment that are identified by model and serial numbers on the annexed Schedule A.
(c) "Specifications" shall mean the functional specifications for the Software in existence as of the effective date of this Agreement. (d) "Errors, Malfunctions and Defects" shall mean the failure or inability of the Software to perform any material functions set forth in the Specifications when such Software is used on the Designated Equipment.
(e) "Nonexclusive license" means a license that does not preclude the licensor from transferring the same information, informational rights, contractual rights or permissions within the same scope to other licensees.
2. Duties of FML.
(a) FML shall perform the following services during the term hereof:
(i) Assist User in diagnosing Errors, Malfunctions and
Defects when the Software is used on the
Designated Equipment.
(ii) Provide technical services to User to attempt to
correct diagnosed Errors, Malfunctions and Defects.
(iii) Provide technical services to User to attempt to
keep the Software in compliance with hardware
changes made to the Designated Equipment by the
manufacturer thereof.
(iv) Provide technical services to User to attempt to
keep the Software compatible with the then-current
version of the operating system of the Designated
Equipment.
(b) In receiving such services, User shall be entitled only to the following:
(i) Twelve (12) telephone support incidents per Term
(as hereinafter defined), not to exceed an aggregate
of eight (8) hours. In the event this Agreement is
renewed for one or more Renewal Terms (as
hereinafter defined), User shall not receive any
credit for unused incidents remaining at the end of
the preceding Term. Such telephone support shall
be provided during FML' s standard business hours
(9 a.m. to 5 p.m. Eastern Time, Monday through
Friday). For each incident per Tenn, FML agrees to
work with the Customer until a resolution or
remediation (work-around) is provided.
(ii) Unlimited e-mail support.
( c) During the term hereof, as part of the annual maintenance fee, FML shall provide Customer with all major and minor Software updates, upgrades, bug fixes, upgrade support, and enhancements and related updates to the Software documentation (each, a "Release"). Users not purchasing the annual maintenance shall have the option to purchase each Release at FML's then-current price.
3. Duties of User. User shall provide FML with all information, documentation, technical assistance and access to the Designated Equipment as FML may require in order to perform the duties set forth in Paragraph 2 hereof. FML shall be released from its obligations hereunder if User is unable or otherwise fails to provide FML with the foregoing.
4. Fees and taxes.
(a) In consideration of FML's performance of its obligations hereunder, User shall pay FML the annual maintenance fees set forth in Schedule A hereof.
(b) User shall pay all taxes based on or in any way measured by this Agreement or any services related hereto, excluding taxes based on FML' s net income. If User challenges the applicability of any such taxes, it shall pay the same to FML and User may thereafter challenge such tax and seek refund thereof.
2 (c) The annual maintenance fees and taxes shall be due and payable in advance within 10 days after the execution hereof by both parties and the submission of invoice therefor by FML. User shall pay a late payment charge of 1.5 percent per month, or the maximum rate permitted by applicable law, whichever is less, on any unpaid amounts for each calendar month or fraction thereof that any payment to FML is in arrears.
5. Proprietary rights.
(a) FML shall own the entire right, title and interest in and to all corrections, programs, information and work product conceived, created or developed, alone or with User or others, as a result of or related to the performance of this Agreement, including all proprietary rights therein or based thereon. Subject to the payment of the maintenance fees and taxes herein provided, FML hereby grants to User a nonexclusive license to use that portion of such corrections, programs, information and work product that FML actually delivers to User pursuant to this Agreement. (b) Except and to the extent expressly provided herein, FML does not grant to User any right, license or other proprietary right, express or implied, in or to any corrections, programs, information or work product covered by this Agreement.
6. Negation of warranty. FML DOES NOT WARRANT THE SERVICES PROVIDED
UNDER THIS AGREEMENT OR THAT THE SOFTWARE WJLL MEET OR CONTINUE
TO MEET THE SPECIFICATIONS OR THAT ANY OR ALL ERRORS, MALFUNCTIONS AND DEFECTS CAN OR WILL BE CORRECTED. ALL CORRECTIONS, PROGRAMS, INFORMATION AND SERVICES ARE PROVICED ON AN "AS IS" BASIS, AND THERE
ARE NOW ARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
7. No infringement indemnification. FML SHALL HA VE NO LIABILITY TO USER
FOR THE INFRINGEMENT OF ANY PROPRIETARY RIGHTS AS A RESULT OF OR
RELATED TO THIS AGREEMENT OR TO ANY CORRECTIONS, PROGRAMS,
INFORMATION, WORK PRODUCT OR SERVICES PROVIDED TO USER BY FML HEREUNDER.
8. Limitation of liability.
(a) FML SHALL NOT BE LIABLE TO USER FOR ANY DAMAGES
RESULTING FROM OR RELATED TO THE SERVICES
PERFORMED BY FML HEREUNDER, INCLUDING, BUT NOT
LIMITED TO, ANY LOSS OF DAT A OR SOFTWARE, INABILITY
OF FML TO CORRECT ANY ERRORS, MALFUNCTIONS AND
3 DEFECTS IN THE SOFTWARE, OR DELAY OF FML IN
PERFORMING ANY SERVICES HEREUNDER.
(b) IN NO EVENT SHALL FML BE LIABLE TO THE USER FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST
PROFITS ARISING OUT OF OR RELATED TO THIS
AGREEMENT, EVEN IF FML HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF OR KNEW OR SHOULD HA VE KNOWN
THEREOF. FML'S LIABILITY HEREUNDER TO THE USER, IF
ANY, SHALL IN NO EVENT EXCEED THE TOTAL OF THE
ANNUAL MAINTENANCE FEES PAID TO FML HEREUNDER BY
USER.
9. Termination.
(a) This Agreement may be terminated upon the occurrence of one or more of the following events; provided, however, the terminating party shall have no liability to the other party for the exercise of any rights granted in this paragraph, nor shall such exercise have the effect of waiving any rights, claims, or damages to which the terminating party might be entitled:
(i) By either party, if the other party is adjudicated
bankrupt or seeks protection as a debtor, voluntarily
or involuntarily, under any bankruptcy law.
(ii) By FML, if User fails to pay the maintenance fees or taxes due FML hereunder.
(iii) By either party, if the other party is in default of any other provision of this Agreement, provided written
notice of such alleged default has been given to the
other party and such other party has not cured such
default within 30 days after receipt of such notice.
(b) The failure of either party to exercise its rights of termination as provided herein shall not be deemed a waiver or limitation of the rights of such party to subsequently terminate this Agreement for any other or similar default.
10. Term.
(a) This Agreement shall become effective upon FML's written acceptance of this Agreement.
4 (
(b) The initial term of this Agreement shall be for a period of 12 months commencing with the date of FML' s acceptance of this Agreement (the "Initial Term").
(c) After expiration of any Term (as hereinafter defined), User shall have the right to renew this Agreement for an additional 12-month period (each, a "Renewal Term") by providing FML with 60 days prior written notice. No Renewal Term shall commence until receipt by FML of its then-current annual maintenance fees. The Initial Term and each Renewal Term shall be referred to herein as a "Term."
(d) Notwithstanding the foregoing, FML shall have the right, exercisable at its sole discretion, to terminate this Agreement effective as of the end of any Term by providing User with 30 days prior written notice thereof.
This right shall be exercisable by FML without respect to any renewal notice previously, contemporaneously or subsequently provided by User pursuant to Paragraph lO(c) hereof.
11. General.
(a) This Agreement is the sole and entire agreement between the paities relating to the subject matter hereof and may be amended only by a writing executed by authorized representatives of both parties. FML rejects any and all additional, conflicting or inconsistent terms and conditions that may be submitted or proposed by User.
(b) User may not assign or transfer this Agreement or User's rights and obligations hereunder without FML' s prior written consent. ( c) All notices, requests or other communications required shall be in writing and shall be deemed to have been duly given if delivered personally or mailed by United States certified or registered mail, prepaid, return receipt requested, to the parties or their permitted assignees at the addresses indicated below ( or at such other address as shall be given in writing by either of the parties to the other). (d) This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia without regard to its principles of conflicts of laws. No action or proceeding based upon this Agreement or arising out of its performance shall be instituted by either party more than one year after the cause of action has accrued, and any such action or proceeding shall be brought in a federal or state court of competent jurisdiction in the County of Goochland, Virginia or the City of Richmond, Virginia, and in no other jurisdiction.
5 (e) In the event that FML should institute suit against User for any relief under this Agreement and substantially prevail in such suit, User shall pay to FML all reasonable expenses and court costs, including reasonable attorneys' fees, incurred by FML, which shall be deemed to have accrued on the date such suit is instituted and shall be enforceable even though such suit is not prosecuted to judgment.
(f) This Agreement shall be binding upon the parties and their respective legal representatives, heirs, devisees, legatees or other successors and assigns, and shall inure to the benefit of the parties and their respective permitted legal representatives, heirs, devisees, legatees or other successors and assigns.
(g) The failure of any party at any time or times to require the performance of any provisions of this Agreement shall in no manner affect the right to enforce the same; and no waiver by any party of any provision (or of a breach of any provision) of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed or construed either as a further or continuing waiver of any such provision or breach or as a waiver of any other provision (or of a breach of any other provision) of this Agreement.
(h) It is the intention of all of the parties hereto that each provision of this Agreement is severable and, if for any reason any provision is held to be invalid or unenforceable, neither the validity or enforceability of the remaining provisions of this Agreement shall be affected thereby. 6 FINITE MATTERS LTD.
PATTERNSTREAM® AUTOMATED DOCUMENT SYSTEM
SOFTWARE LICENSE AGREEMENT
Notice to User:
By clicking on the "I ACCEPT" button, you are consenting to be bound by and are becoming a party to this License Agreement, which is a legal document between you and Finite Matters Ltd., a Virginia corporation ("Licensor"). If you do not agree to all of the terms of this License Agreement, click the "I DO NOT ACCEPT" button.
By installing or using the accompanying software, you agree to be bound by the terms of this Agreement. If you do not agree, you are not licensed to use the software, and you must remove the software from your system and return any tangible copies of the software in your possession or control· to Licensor.
Software License
License Grant. Licensor hereby grants to you a non-exclusive, NONTRANSFERABLE, limited license (the "License") to use the accompanying software application and data (the "Program") on any server computer located at your business premises and any other computers or devices owned or controlled by you which can be accessed from outside your business premises by a telecommunications network or otherwise.
Copying. You may make that numbe.r of copies of the Program that are necessary for you to use the Program in accordance with the license granted above. You also may copy the Program for archival purposes.
Each copy made by you must include the copyright/proprietary rights notice(s) embedded in and affixed to the Program. All other copying of the Program, any part thereof, or the accompanying documentation (if any) is prohibited.
Other Restrictions. YOU MAY NOT DISTRIBUTE, LOAN, LEASE OR RENT THE
PROGRAM, BUT YOU MAY TRANSFER YOUR RIGHTS UNDER THIS LICENSE ON A PERMANENT BASIS IF YOU TRANSFER THIS LICENSE, THE" PROGRAM AND ALL
ACCOMPANYING WRITTEN MATERIALS AND RETAIN NO COPIES, AND THE RECIPIENT AGREES TO THE TERMS OF THIS AGREEMENT. ANY TRANSFER OF THE PROGRAM MUST INCLUDE THE MOST RECENT UPDATE AND ALL PRIOR VERSIONS. Under no circumstances may you modify, translate, reverse engineer, decompile, or disassemble the Program, any associated data or subscription files, or create any derivative work thereof.
Title. Title to the Program is not transferred to you. Ownership of the Program and all subsequent copies of the Program regardless of the form or media in or on which the original and other copies subsequently may exist, remains in Licensor.
Limited Warranty and Disciaimer
Limited Warranty. _ Licensor warrants that, for a period of 365 days from the date you activate the Program: (i) the medium, if any, upon which the Program ~s provided to you by Licensor will be free from defects in material and workmanship under normal use, and (ii) the Program will perform substantially in accordance with its accompanying documentation when operated in the computing environment specified by Licensor.
Licensor does not warrant, however, that the Program will meet your requirements, that your use of the Program will, be uninterrupted, that the operation of the Program will be error-free or secure, or that any defects in the Program will be corrected. Modifications to the Program, subjection of the Program to accident, abuse, or improper use, or violation of the terms of this Agreement shall void this limited warranty immediately. This warranty shall not apply if the Program is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the Program was designed to be used as described in the accompanying documentation.
DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PROGRAM AND ANY DOCUMENTATION ARE PROVIDED "AS IS," "WITH ALL FAULTS" AND WITHOUT WARRANTY OF A.i.~Y KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMA.i.~CE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PROGRAt~ OR AGAINST INFRINGEMENT.
Limitation of Remedies. Licensor's entire liability and your exclusive remedy for breach of any expressed or implied warranty shall be, at Licensor's option, either (i) replacement of the Program or media that does not conform to the Limited Warranty contained in this Agreement and which is ret~rned to Licensor with a copy of your purchase receipt prior to expiration of the applicable warranty period, or (ii) a refund of your purchase price for the Program upon return of the Program and all documentation with a copy of your purchase receipt prior to expiration of the applicable warranty period and certification that you have erased all other copies of the Program ir. your control or possession. Any replacement Program will be warranted for the remainder of the original warranty period or 30 days, whichever is longer.
LIMITATION OF LIABILITY. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY
LOST PROFITS OR OTHER DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, EXSMPLARY, CONSEQUENTIAL OR ANY OTHER TYPE OF DAMAGES, ARISING
OUT OF THIS AGKEEMENT OR TEE USE OF THE PROGRAM LICENSED HEREUNDER, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAiv".tAGES.
General Provisions
Termination. Th:s Agreement and the License granted herein may be terminated by Licensor, at its sole option, if you commit a material breach of this Agreement. This Agreement and the License granted herein shall terminate immediately upon your receipt of a new version or update of the Program. Upon any termination of this Agreement, you must cease use of the Program, destroy all copies then in your possession or control, and take such other action as Licensor may reasonabl y require to ensure that r.o copies of the Program remain in your possession or control.
Export Controls. The Program, the Program technology and its related documentation may not be exported or reexported in violation of the U.S.
Export Administration Act and its implementing regulations.
Governing Law. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia, U.S.A. as such laws apply to agreements between Virginia residents entered into and to be performed within Virginia, except as governed by Federal law. ANY ACTION OR
PROCEEDING SHALL BE BROUGHT IN A FEDERAL OR STATE COURT OF COMPETENT
JURISDICTION IN THE COUNTY OF GOOCHLAND, VIRGINIA OR THE CITY OF RICHMOND, VIRGINIA, AND IN NO OTHER JURISDICTION.
Miscellaneous. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the validity and enforceability of the other provisions will not be affected thereby.
Failure of a party to enforce any provision of this Agreement does not constitute and should not be construed as a waiver of such provision or of the right to enforce such provision. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
U.S. Government Restricted Rights. The Program and any documentation are provided to the Government with RESTRICTED RIGHTS as defined at 48 CFR
27.401 or at DFARS 252.227-7013(a), as appropriate to the procuring agency. Notwithstanding any other lease or license agreement that pertains to, or accompanies the delivery of, the Program, use, duplication or disclosure by the U.S. Government is subject to restrictions set·forth in subparagraphs (c) (1) and (c) (2) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19, when procured or used by civilian agencies of the U.S. Government, or in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, when procured or used by agencies of the U.S. Department of Defense, and in similar clauses in the NASA FAR Supplement, where applicable. U.S. Government.Restricted Rights Contractor/manufacturer is Finite Matters Ltd., 3064 River Road West, Suite B, Goochland, Virginia 23063.
Copyright. The Program is protected by the copyright laws of the United States and international copyright treaties, and should be treated like other copyrighted material.
Copyright 2015 Finite Matters Limited Liability Company Portions of the Program are licensed under the Apache License, Version
2.0 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at
http: / /www . apache.org/licenses/LICENSE-2.0
Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRA.~TIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License.
Contact Us.
If you have any questions concerning this Agreement, or if you desire to contact Licensor for any reason, please contact Finite Matters Ltd. at · 3064 River Road West, Suite B, Goochland, Virginia 23063. (
Exhibit D
DocOrigin End User License Agreement
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
1 ATTENTION: THE SOF1WARE PROVIDED UNDER THIS AGREEMENT IS BEING LICENSED TO YOU BY OF SOFTWARE LTD. AND IS NOT BEING SOLD. THIS SOF1WARE IS PROVIDED UNDER THE FOLLOWING AGREEMENT THAT SPECIFIES WHAT YOU MAY DO WITH THE SOF1WARE AND CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES.
DocOrlgln
SOFTWARE LICENSE
IMPORTANT-READ CAREFULLY: This End-User License Agreement ("Agreement" or "EULA") is a legal agreement between you (either an individual person or a single legal entity, who will be referred to in this EULA as ·vou") and OF Software Ltd. for the DocOrigin software product that accompanies this EULA, including any associated media, printed materials and electronic documentation (the "Software"). The Software also encompasses any software updates, add-on components, web services and/or supplements that may be provided to you or made available to you after the date you obtain the initial copy of the Softv;are to the extent that such items are not accompanied by a separate license agreement or terms of use. If you receive the Software under separate terms from your distributor, those tenns will take precedence over any conflicting tenns of this EULA.
By installing, copying, downloading, accessing or otherwise using the Software, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install, access or use the Software; instead, you should remove the Software from all systems and receive a full refund.
IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDlVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON
SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER,
CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
1. LICENSE TERMS
1.1 In this Agreement a "License Key" means any license key, activation code, or similar installation, access or usage control codes, including serial numbers digitally created and or provided by OF Software Ltd., designed to provide unlocked access to the Software and its functionality.
1.2 Evaluation License. Subject to all of the terms and conditions of this Agreement, OF Software Ltd. grants You a limited, royalty-free, non-exclusive, non-transferable license to download and install a copy of the Software from www.docorigin.com on a single machine and use it on a royalty-free basis for no more than 120 days from the date of installation (the ''Evaluation Period"). You may use the Software during the Evaluation Period solely for the purpose of testing and evaluating it to detennine if You wish to obtain a commercial, production license for the Software. This evaluation license grant will automatically end on expiry of the Evaluation Period and you acknowledge and agree that OF Software Ltd. will be under no obligation to renew or extend the Evaluation Period. If you wish to continue using the Software You may, on payment of the applicable fees, upgrade to a full license (as further described in section 1.3 below) on the terms of this Agreement and will be issued with a License Key for the same. If you do not wish to continue to license the Software after expiry of the Evaluation Period, then You agree to comply with the termination obligations set out in section [7 .3] of this Agreement. For greater certainty, any document generated by you under an evaluation license will have a 'spoiler' or watermark on the output document. Documents generated by DocOrigin software that has a valid license key file also installed will not have the 'spoiler' produced. You are not permitted to remove the watermark or 'spoiler' from documents generated using the software under an evaluation ltcense.
1.3 Development and Testing Licenses. Development and testing licenses are available for purchase through authorized distributors and resellers of OF Software Ltd. only. Subject to all of the terms and cond.ilions of this Agreement, OF Software Ltd. grants You, a perpetual (subject to termination by OF Software Ltd. due to your breach of the terms of this Agreement), non-exclusive, non-transferable, worldwide non-subllcenseable license to download and install a copy of the Software from www.docorigin.com on a single machine and 2 use for development and testing to create collateral deployable to Your production system(s). You are not entitled to use a development and testing license for live production purposes.
1.4 Production Licenses. Production licenses are available for purci"lase through authorized distributors and resellers of OF Software Ltd. only. Subject to all of the terms and conditions of this Agreement, OF Software Ltd. grants You, a perpetual (subject to termination by OF Software Ltd. due to your breach of the terms of this Agreement), non-exclusive, non-transferable, worl~ide non-sublicenseable license to use the Software In accordance with the license type purchased by you as set out on your purchase order as further described below. For greater certainty, unless otherwise agreed in a purchase order concluded with an approved distributor of the Software, and approved by OF Software, the default license to the Software is a per-CPU license as described in A below:
A. Per-CPU. The total number of CPUs on a computer used to operate the Software may not exceed the licensed quantity of CPUs. For purposes of this license metric: (a) CPUs may contain more than one processing core, each group of two (2) processing cores is consider one (1) CPU., and any remaining unpaired processing core, will be deemed a CPU. (b) all CPUs on a computer on which the Software is installed shall be deemed to operate the Software unless You configure that computer (using a reliable and verifiable means of hardware or software partitioning) such that the total number of CPUs that actually operate the Software is less than the total number on that computer.
B. Per-Document. This is defined as a fee per document based on the total number of documents generated annually by merging data with a template created by the Software. The combined data and template produce documents of one or more pages. A document may contain 1 or more pages. For instance a batch of invoices for 250 customers may contain 1,000 pages, this will be counted as 250 documents which should correspond to 250 invoices.
C. Per-Surface. This is defined as a fee per surface based on the total number of surfaces generated annually by merging data with a template created by the Software. The combined data and template produce documents of one or more pages, the pages may be printed one side (one surface) or duplexed (2 surfaces). The documents may be rendered to a computer file (i.e. PDF), each page placed In the file is considered a surface. A document may contain 1 or more surfaces.
For instance a batch of invoices tor 250 customers may contain 500 pages duplexed, this will be counted as. 1000 surfaces.
1.5 Disaster Recovery License. You may request a Disaster Recovery license of the Software for each production license You have purchased as a failover in the event of loss of use of the production server(s).
This license is for disaster recovery purposes only and under no circumstance may the disaster recovery license be used for production simultaneously With a production license with which it is paired.
1.6 Backup Copies. After installation of the Software pursuant to this EULA, you may store a copy of the installation files for the Software solely for backup or archival purposes. Except as expressly provided in this EULA, you may not otherwise make copies of the Software or the printed materials accompanying the Software.
1.7 Third-Party Software Ucense Rights. If a separate license agreement pertaining to an item of thi~rty software is: delivered to You with the Software, Included in the Software download package, or referenced in any material that is provided with the Software, then such separate license agreement shall govern Your use of that item or version of Third-Party Software. Your rights in respect to any third-party software, third-party data, third-party software or other third-party content provided with the Software shall be limited to those rights necessary to operate the Software as permitted by this Agreement No other rights in the Software or third-party software are granted to You.
3 2. LICENSE RESTRICTIONS
Any copies of the Software shall include all trademarks, copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy of the Software originally provided to You. You may not remove or alter any copyright, trademark and/or proprietary notices marked on any part of the Software or related documentation and must reproduce all such notices on all authorized copies of the Software and related documentation. You shall not sublicense, distribute or otherwise make the Software available to any third party (including, without limitation, any contractor, franchisee, agent or dealer) without first obtaining the written agreement of (a) OF Software Ltd. to that use, and (b) such third party to comply with this Agreement. You further agree not to (i) rent, lease, sell, sublicense, assign, or otherwise transfer the Software to anyone else; (ii) directly or indirectly use the Software or any information about the Software in the development of any software that is competitive with the Software, or (iii) use the Software to operate or as a part of a time-sharing service, outsourcing service, service bureau, application service provider or managed service provider offering. You further agree not to reverse engineer, decompile, or disassemble the Software.
3. UPDATES, MAINTENANCE ANO SUPPORT
3.1 During the validity period of Your License Key, You will be entitled to download the latest version of the Software from the DocOrigin website W\wt.docorigin.com. Use of any updates provided to You shall be governed by the terms and conditions of this Agreement. OF Software Ltd. reserves the right at any time to not release or to discontinue release of any Software and to alter prices, features, specifications, capabilities, functions, licensing. terms, release dates, general availability or other characteristics of the Software.
3.2 On expiry of your maintenance and support contract, you will have the right to continue using the current version(s) of the Software which you downloaded prior to the date of expiry of your License Key. However, you will need to renew maintenance and support in order to receive a new License Key that will unlock the more current version(s) of the Software. For greater certainty, if you attempt to use an expired License Key to download the latest version of the Software, the Software will revert to being a locked, evaluation copy of that version of the Software.
4. INTELLECTUAL PROPERTY RIGHTS.
This EULA does not grant you any rights in connection with any trademarks or service marks of OF Software Ltd. or DocOrigin. All title and intellectual property rights in and to the Software, the accompanying printed materials, and any copies of the Software are owned by OF Software Ltd. or its suppliers. All title and intellectual property rights in and to the content that is not contained in the Software, but may be accessed through use of the Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content. If this Software contains documentation that is provided only in electronic form, you may print one copy of such electronic documentation.
5. DISCLAIMER OF WARRANTIES.
TO THE GREATEST EXTENT PERMITTED BY LAW, THE LICENSED SOFlWARE AND TECHNICAL SUPPORT PROVIDED BY OF SOF1WARE LTD. HEREUNDER ARE PROVIDED ON AN "AS IS" BASIS AND
THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN
OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR
OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT OR IN CONNECTION WITH THIS AGREEMENT BY OF SOFTWARE LTD.
OF SOFTWARE LTD. DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS OF QUALITY,
MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. OF SOFTWARE LTD. DOES NOT REPRESENT OR WARRANT THAT THE SOF1WARE SHALL MEET ANY OR ALL OF YOUR PARTICULAR REQUIREMENTS, THAT THE SOFTWARE
WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE SOFlWARE CAN BE FOUND OR CORRECTED.
In certain jurisdictions some or all of the provisions in this Section may not be effective or the applicable law may mandate a more extensive warranty in which case the applicable law will prevail over this Agreement. 4 6. LIMITATIONS OF LIABILITY.
6.1 TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OF SOFTWARE LTD. BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER,
INCLUDING WITHOUT LIMITATION, LEGAL EXPENSES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOST OR ·DAMAGED DATA, LOSS OF COMPUTER TIME, COST OF SUBSTITUTE GOODS OR SERVICES, OR FAILURE TO REALIZE EXPECTED SAVINGS OR AtN OTHER COMMERCIAL OR
ECONOMIC LOSSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF OF SOFTWARE LTD. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, OR SUCH LOSSES OR DAMAGES ARE FORESEEABLE.
6.2 THE ENTIRE LIABILITY OF OF SOF1WARE LTD. AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO
THE SOFTWARE AND TECHNICAL SUPPORT AND ANY OTHER PRODUCTS OR SERVICES SUPPLIED BY OF SOFTWARE LTD. IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES FOR ANY CAUSE AND REGARDLESS OF THE CAUSE OF ACTlON, WHETHER IN CONTRACT OR IN TORT, INCLUDING
FUNDAMENTAL BREACH OR NEGLIGENCE, WILL BE LIMITED IN THE AGGREGATE TO THE AMOUNTS PAID BY YOU FOR THE SOFlWARE, TECHNICAL SUPPORT OR SERVICES GIVING RISE TO THE CLAIM.
6.3 THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YQU ACKNOWLEDGE THAT BUT
FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER OF SOFTWARE LTD. NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.
7. TERM AND TERMINATION
7.1 The term of this Agreement will begin on download of the Software and, in respect of an Evaluation License, shall continue for the Evaluation Period, and in respect of all other license types defined in Section 1, shall continue for as long as You use the Software, unless earlier terminated sooner under this section 7.
7.2 OF SoftWare Ud. may terminate this Agreement in the event of any breach by You if such breach has not been cured within five (5) days of notice to You. No termination of this Agreement will entitle You to a refund of any amounts paid by You to OF Software Ltd. or its applicable distributor or reseller or affect any obligations You may have to pay any outstanding amounts owing to OF Software Ltd. or Its distributor.
7.3 Your rights to use the Software will Immediately terminate upon termination or expiration of this Agreement.
Within five (5) days of tennination or expiration of this Agreement, You shall purge all Software and all copies thereof from all computer systems and storage devices on which it was stored, and certify such to OF Software Ltd.
8. GENERAL PROVISIONS
8.1 No Waiver. No delay or failure in exercising any right under this Agreement, or any partial or single exercise of any right, will constitute a waiver of that right or any other rights under this Agreement. No consent to a breach of any express or implied term set out in this Agreement constitutes consent to any subsequent breach, whether of the same or any other provision.
8.2 Severablllty. lf any provision of this Agreement is, or becomes, unenforceable, it will be severed from this Agreement and the remainder of this Agreement wiU remain in full force and effect.
8.3 Assignment. You may not transfer or assign this Agreement (whether voluntarily, by operation of law, or otherwise) without OF Software Ltd.'s prior written consent. OF Software Ltd. may assign this Agreement at any time without notice. This Agreement is binding upon and will inure to the benefit of both parties, and their respective successors and permitted assigns.
8.4 Governing Law and Venue. This Agreement shall be governed by the laws of the Province of Ontario. No choice of laws rules of any jurisdiction shall apply to this Agreement. You consent and agree that the courts of the Province of Ontario shall have jurisdiction over any legal action or proceeding brought by You arising out of or relating to this Agreement, and You consent to the jurisdiction of such courts for any such action or proceeding.
5 8.5 Entire Agreement. This Agreement is the entire understanding and agreement between You and OF Software Ltd. with respect to the subject matter hereof, and it supersedes all prior negotiations, commitments and understandings, verbal or written, and purchase order issued by You. This Agreement may be amended or otherwise modified by OF Software Ltd. from time to time and the most recent version of the Agreement will be available on the OF Software website www.docorigin.com.
Last Updated: {July 18 2013]
6 Professional Services Agreement Insurance Requirements With Professional Liability
Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees or subcontractors.
Minimum Scope/Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering COL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if the Consultant has no owned autos, Code 8 (hired) and Code 9 (nonowned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: Workers' Compensation insurance as required by the State of California, with Statutory Limits and Employers' Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease.
4. Professional Liability: Insurance appropriate to the Consultant's profession with a limit of not less than $2,000,000 each occurrence.
If the Consultant maintains higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status (CGL): The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the COL policy with respect to liability arising out of work or operations performed by or on behalf of Consultant. General liability coverage can be provided in the form of an endorsement to the Consultant's insurance at least as broad as Insurance Services Office Form CG 20 10 11 85.
1 b. Primary Coverage (CGL, Auto, and Professional Liability): For any claims related to this contract which arise from Consultant'~ performance hereunder, the Consultant's insurance shall be primary as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it.
c. Notice of Cancellation (all policies): Should any of the above described policies be cancelled before the expiration date thereof, Consultant will ensure notice will be delivered in accordance with the policy provisions.
d. Waiver of Subrogation : Consultant hereby grants to the City of Santa Monica a waiver of any right of subrogation with regard to the CGL and Auto policies which any insurer of said Consultant may acquire against the City of Santa Monica by virtue of payment of any loss. Relative to Workers' Compensation coverage, Consultant hereby grants the City a waiver of subrogation which any insurer of Consultant may acquire against the City by virtue of payment of loss, except if the loss was caused by the City's sole negligence. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions shall be disclosed to the City of Santa Monica upon request.
Acceptability of Insurers
Insurance is to be placed with insurers with a current AM. Best rating of no less than A- :Vll, unless otherwise acceptable to the City of Santa Monica.
Claims Made Policies
1. If the Professional Liability policy provides "claims made" coverage:
a. The Retroactive Date must be before the date of this Agreement or the start of work.
b. The insurance must be maintained and evidence of insurance must be provided for at least 5 years after completion of work.
c. If the policy is cancelled or not renewed, and not replaced with another "claims made" policy form with a Retroactive Date prior to the effective Agreement date, 2 r
the Consultant must purchase "extended reporting" coverage for a minimum of 5 years after completion of work.
Verification of Coverage
Consultant shall furnish the City of Santa Monica with original certificates and amendatory endorsements or copies of the applicable policy language providing the insurance coverage required herein. All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Consultant's obligation to provide them.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
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